Leiden Law Blog

Free movement rights over the rainbow

Posted on by Alast Najafi in Public Law , 2
Free movement rights over the rainbow

Right on time for this year’s Pride Month, the CJEU delivered its long-awaited judgment in Coman and Others in the first week of June. The case allowed the CJEU to rule, for the first time, that the concept of ‘spouse’ within the meaning of the Citizens Rights Directive includes same-sex spouses.

The judgment provides legal certainty for same-sex couples that concluded their marriage in accordance with the laws of one of the thirteen Member States that legalized same-sex marriages[1] and that wish to take up residence elsewhere in the European Union.

The case concerned Adrian Coman, a Romanian citizen, who requested in 2012 information from the Romanian authorities on the conditions for the granting of a residence permit for his third-country national, male spouse. The couple’s marriage had been concluded two years prior to the request under Belgian law. After the Romanian authorities refused to issue a residence permit on the grounds that the Romanian Civil Code prohibits the recognition of same-sex marriages, the couple challenged the constitutionality of the decision.  Eventually, the case found its way to Luxembourg via a request from the Romanian Constitutional Court.

The Romanian Court inquired whether the term ‘spouse’ within the meaning of Article 2(2)(a) of the Directive, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights, includes a same-sex spouse, and if this is the case, whether Member State are required to grant a residence permit under Article 7(2) of the Directive.

The facts of the case align well with O. & B., where a Union citizen claimed residence rights for his third-country national spouse in his home Member State, after having genuinely exercised his free movement rights. Unlike Union citizens who enjoy free movement rights by virtue of their Union citizenship, third-country nationals do not have any autonomous rights but enjoy derived rights.

The CJEU now held that despite the Member States’ freedom to choose whether or not to legalize same-sex marriages, they may not restrict free movement rights of EU citizens by refusing derived rights of residence to same-sex spouses, who are third-country nationals. The Court went on to dismiss any public policy arguments put forward by some Member States, since they can only be relied on if there is a genuine and sufficiently serious threat to a fundamental interest of society (paragraph 44). Thus, recognizing same-sex marriages for the sole purpose of granting a derived right of residence (…) does not undermine the national identity or pose a threat to the public policy of the Member State concerned (paragraph 46), since such recognition does not touch upon the Member States’ competence to define the institution of marriage.

The manner in which the Court reached the conclusion that the term ‘spouse’ suggests an inclusive reading deserves a closer look.

At the outset, the Court confirmed Metock by pointing out that the term ‘spouse’ referred to a person joined to another person by the bonds of marriage (paragraph 34). Following a grammatical and contextual interpretation of Article 2 of the Directive allowed the Court to conclude that the term spouse constitutes a gender-neutral concept that may be applied to persons of the same sex (paragraph 35), and which contains, unlike registered partnerships, no reference to the conditions laid down in the legislation of the Member States (paragraph 36).

Even if marital law remains a national competence, Member States have to comply with EU law when exercising that competence (paragraph 37-38). The Court went on to argue for an EU-wide definition, because another interpretation would have the effect that the freedom of movement of Union citizens who have already made use of that freedom would vary from one Member State to another and interfere with their free movement rights (paragraph 39-40).

It is worth emphasising that the Court opted for a uniform definition by anticipating the consequences of a variable interpretation of the term ‘spouse’. However, decoupling the consequences of a variable interpretation from the interpretation itself would have obliged the Court to pronounce itself more in depth on the issue of same-sex marriage.

Herein lies a notable difference to the Advocate General’s opinion. Although both the Court and the AG reach the same conclusion, the Court, unlike the AG in paragraph 54-67 of his opinion, did not examine the developing interpretation of the concept of ‘spouse’ to conclude its gender neutrality. On this point, the Court aligns well with the ECtHR which, despite its common practice to interpret the ECHR as a ‘living instrument’, refrains from applying an evolutive or dynamic interpretation towards same-sex marriages. However, in Oliari & Others v. Italy, the ECtHR followed a consensus-based approach to ultimately establish a positive obligation to provide legal recognition for same-sex couples (paragraph 54 and 178).

It is the AG’s developing interpretation of the concept ‘spouse’ that lead him to suggest that the Court’s earlier case law, according to [which] the definition generally accepted by the Member States, the term marriage means a union between persons of the opposite sex, cannot be upheld (paragraph 57). In Coman however, the Court did not reverse D and Sweden v. Council but merely extended the notion of marriage to same-sex marriages lawfully concluded in a Member State in the context of free movement rights. 

Notwithstanding, the Court’s non-discriminatory application of its earlier case law on free movement (O. & B. and Singh) is laudable. Despite the judgment’s limited scope, it is unequivocally a major and very clear step towards a more equal and inclusive Union.

Love is love.

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[1] Currently thirteen EU countries legalized same-sex marriage (Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden, and Great Britain).  In Austria, same-sex marriages will be legal from 1 January 2019. In the remaining fourteen Member States entering into conventional legal marriage remains a heterosexual prerogative, of which seven countries have defined in their constitutions marriage as being between a man and a woman (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia).

2 Comments

Madalina
Posted by Madalina on October 16, 2018 at 13:19

I found the article very well written and organised. It has a good structure and the arguments are clear, concise and coherent.
I must say it is crystal clear that it has been written by a highly intelligent student.

- Madalina

Omar Eklil
Posted by Omar Eklil on June 29, 2018 at 09:47

Very well written en argued article. I found it to be not only informative, but also a pleasure to read.
Thank you Alast for your contribution to this issue, would like to read more from you.
Omar

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