Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU?

Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews http://www.pinknews.co.uk/2016/11/29/romania-goes-to-court-over-whether-to-recognise-gay-couples-marriage/)

Introduction

The legal recognition of same-sex relationships has, in the last couple of decades, become one of the most prominent issues discussed in parliaments, in courts, and in the media, around the world, with views on both sides of the debate being overwhelmingly strong. This is a complicated and sensitive matter which touches on issues relating to human rights, religion, morality, and tradition, as well as on constitutional principles such as equality, autonomy, and human dignity. Despite the fact that there has been research which demonstrates the benefits – especially for young LGB persons – of opening marriage to same-sex couples (see, for instance here), most religions and Churches reject this move and are, even, often vehemently opposed to it, considering homosexuality a ‘sin’, this leading, in turn, to negative societal attitudes towards LGB persons, especially in countries that are deeply religious. The decision to extend legal recognition to same-sex relationships – in countries where this has been made – does not signal the end of the debate, but a number of additional questions emerge once this step is taken: what legal status should be given to same-sex couples? Should they be allowed to adopt children as a couple? Should same-sex couples comprised of two men be allowed to have a child through a surrogacy arrangement? Should same-sex couples comprised of two women be allowed to have a child (as a couple) through medically assisted insemination and, if yes, should the State fund this?

Europe has, until recently, boasted as the most progressive continent regarding the legal recognition of same-sex relationships, with Denmark being the first country in the world to introduce same-sex registered partnerships (in 1989) and the Netherlands being the first country to introduce same-sex marriage (in 2001). In fact, all western EU Member States now make provision for legal recognition of same-sex relationships, and in some of them the law treats same-sex couples in exactly the same way as it treats opposite-sex couples. Yet, the majority of the eastern European countries do not offer legal recognition to same-sex relationships and, in fact, a handful of them have – or have recently introduced – a constitutional ban on same-sex marriage (of the EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia).

The EU has managed to avoid having to take a clear stance on the issue of the legal recognition of same-sex relationships, considering that this is a matter that falls exclusively within Member State competence. However, what happens when a married couple comprised of persons of the same sex moves between Member States in exercise of EU free movement rights? Must a same-sex marriage entered into in another Member State be recognised by a Member State which does not provide for the legal recognition of same-sex relationships in its territory, when a Union citizen seeks to rely on EU law to claim family reunification rights on his return to that State? The EU judiciary has, now, been called to clarify the EU’s position on this issue in the Coman case (Case C-673/16). The case is pending before the ECJ and the judgment is eagerly awaited by LGBT organisations, lawyers and academics interested in LGBT rights, and married same-sex couples who have, so far, been disappointed by the lack of clarity as regards the protection they enjoy under EU law when exercising their free movement rights.

LGBT Rights in Romania

Romania does not provide any form of legal recognition for same-sex couples and two draft bills on the matter have been recently rejected by the Romanian Parliament with large majorities. In addition, the country’s Civil Code expressly bans same-sex marriages and registered partnerships and prohibits the recognition of same-sex marriages and registered partnerships entered into abroad. Romania is a deeply religious country with the majority of its population being against the legal recognition of same-sex relationships: in 2016, within a period of six months, around 3 million Romanians signed a petition calling for a referendum to change the country’s constitution to define marriage as an institution between a man and a woman, which, if it yields a positive result, will effectively introduce a constitutional ban on same-sex marriage. The petition – which has been strongly backed by the US Evangelical firm Liberty Counsel and the Romanian Orthodox Church – has been organised by the ‘Campaign for Family’ which is a Romanian coalition of religious and conservative NGOs established in 2015, and has been held valid by the Romanian Constitutional Court. At the moment, there is, still, no constitutional ban on same-sex marriage in Romania, as the proposed constitutional amendment can be made only once it is approved in a referendum and by a majority in the Romanian parliament.

Romania has received one of the lowest scores in ILGA Europe’s Rainbow Map (with only 3 other EU Member States – Poland, Lithuania and Latvia – having received a lower score), as the protection it offers to LGBT persons and same-sex couples appears rather rudimentary. This seems to be reflective of the fact that public acceptance of LGBT people and same-sex relationships in this country is lower than the EU average.

The Coman case is the second reference to the ECJ from Romania concerning LGB rights; the first such case was Asociaţia ACCEPT, which involved the prohibition of discrimination on the ground of sexual orientation under Directive 2000/78 (see the comments on that case by Belavusau here).

The Coman Case

Adrian Coman is a Romanian gay rights activist. He married his male partner (Claibourn Robert Hamilton) – a US citizen – in Belgium in 2010 and the couple currently lives in the US. In 2012, Mr Coman asked the Romanian immigration authorities for information on the requirements for obtaining a residence permit for his spouse. He was told that such a permit would be refused on the ground that the couple’s same-sex marriage could not be recognised in Romania as the Romanian Civil Code bans the recognition of same-sex marriages performed abroad; if Mr Coman’s spouse was a woman, the marriage would have been automatically recognised in Romania and Mr Coman’s spouse would have been entitled to a residence permit by virtue of that. As a result of this, the couple brought an action, claiming that the refusal of the residence permit due to the failure of the Romanian authorities to recognise same-sex marriages contracted abroad, amounted to a breach of Mr Coman’s EU free movement rights as well as to discrimination on the ground of sexual orientation, contrary to the EU Charter of Fundamental Rights (EUCFR). The first instance court hearing the case referred a question to the Romanian Constitutional Court regarding the constitutionality of the relevant provisions of the Civil Code. The Romanian Constitutional Court, by a majority of seven to two, then, decided to stay the proceedings and to refer a number of questions for a preliminary ruling to the ECJ, which can be summarised as follows:

a) whether the word ‘spouse’ in Article 2(2)(a) of Directive 2004/38 includes a same-sex spouse and, if yes, whether the host Member State is required by the Directive to grant the right of residence on its territory for more than three months to the same-sex spouse of a migrant Union citizen

and, in case the previous question is answered in the negative,

b) whether the same-sex spouse of a migrant Union citizen can qualify as ‘any other family member’ under Article 3(2)(a) of the 2004 Directive or as ‘the partner with whom the EU citizen has a stable relationship’ under Article 3(2)(b) of the Directive and, if yes, whether the host Member State is required to facilitate entry and residence on its territory by the same-sex spouse of a migrant Union citizen, even if it does not recognise same-sex marriage and does not provide for an alternative form of legal recognition for same-sex couples.

The hearing for the case has been scheduled for 30 March 2017. 

The case has attracted extensive national and international media coverage and a number of Romanian and non-Romanian NGOs have intervened.

The Issue in a Nutshell

Although the EU Treaties do not make reference to the family reunification rights of Union citizens who exercise their free movement rights, already in the 1960s it was recognised that if Member State nationals were to move between Member States in furtherance of the Community’s objectives, they had to be given the right to be accompanied by their close family members in the Member State to which they moved (see Regulation 1612/68 and Directive 73/148). Accordingly, secondary legislation has always made provision for family reunification rights – these are, currently, provided by Directive 2004/38 – for Union citizens who exercise their right to move and reside freely in the territory of a Member State other than that of their nationality. In addition ‘returnees’ (i.e. Member State nationals who return to their State of nationality after having exercised free movement rights) have been considered, also, to enjoy such rights by virtue of primary EU law and, in particular, by the EU free movement provisions (see the Singh case); however, as made clear in the O & B case (para. 50), the interpretation of the family reunification rights granted by Directive 2004/38 is relevant to them as well, since the family reunification rights laid down in the Directive apply ‘by analogy’ to returnees, this being the reason that the questions referred in Coman (which involved a ‘returnee’) concerned the interpretation of the Directive.

The ‘spouse’ of the migrant Union citizen (now referred to in Article 2(2)(a) of Directive 2004/38), has always been considered one of the family members that can rely on EU law in order to require the Member State of destination to accept him or her in its territory. The nationality of the ‘spouse’ and, in particular, whether he is a Union citizen or a third-country national, has never mattered, as the rationale behind granting family reunification rights has, simply, been to encourage the exercise of free movement by the Union citizen and this can be impeded if the spouse – whatever his/her nationality – cannot accompany or join the migrant Union citizen. Practically speaking, family reunification rights have been mainly used by Union citizens who are married to third-country nationals, as the latter do not enjoy an individual right to free movement under EU law.

The important question for our purposes – and the one raised in Coman – is whether the term ‘spouse’ in this context includes the same-sex spouse of the Union citizen who has exercised free movement rights. A quick perusal of Directive 2004/38 demonstrates that the matter is not clear: the gender- and sexual orientation-neutral term ‘spouse’ is used in Article 2(2)(a) of the Directive, when defining one of the categories of family members that enjoy an automatic right to join or accompany the migrant Union citizen in the Member State of destination, without the meaning of this term being further clarified in any other part of the Directive. This is so, despite the fact that when the proposal for the Directive was discussed by the EU legislature, the question of whether the term should be read to include a same-sex spouse had been expressly laid on the table.

Due to the sensitivity of the issue and the divergence of views among the Member States, the EU legislature consciously chose vagueness over clarity, thus making this an issue that would have to be resolved by judicial interpretation. Coman is the first opportunity that has been given to the ECJ for providing an interpretation of the term ‘spouse’ in this context and for clarifying whether this term must be read as including the same-sex spouse of a Union citizen. Three years ago – in the Cocaj case (C-459/14) – the ECJ was asked to clarify the meaning of the term ‘registered partner’ in the same Directive and to specify, in particular, whether it includes same-sex registered partners, but the reference was subsequently withdrawn by the referring court, meaning that that question remains unresolved.

What Must the Court rule?

Two years ago, the issue of the legal recognition of same-sex relationships in the US was resolved once and for all by the US Supreme Court’s judgment in the Obergefell v. Hodges case. The Supreme Court based its decision to require all US states to extend marriage to same-sex couples and to recognise same-sex marriages contracted in another US state, on a dual basis: a) the need to respect the fundamental right to marry as one of the fundamental liberties protected by the US Constitution’s Fourteenth Amendment’s Due Process Clause, since the freedom to choose who to marry is central to individual dignity and autonomy; and b) the US Constitution’s Fourteenth Amendment’s Equal Protection Clause, since the refusal to open marriage to same-sex couples leads to inequality between same-sex and opposite-sex couples: the former are denied benefits and a status afforded to opposite-sex couples and – unlike the latter – are barred from exercising a fundamental right (i.e. the right to marry).

As argued in another post in this blog, Obergefell v. Hodges is the case that put the US ahead of the EU with regards to the issue of the legal recognition of same-sex relationships, and has stripped the latter of its position as a pioneer in the field of LGBT rights protection. However, is Coman now the EU’s opportunity not merely to catch-up with the US but, also, to re-acquire its position as pioneer in the protection of LGB rights, since EU law already provides protection to LGB persons from discrimination on the ground of sexual orientation in the employment field, something which is currently lacking at federal level in the US?

Coman is only about the cross-border legal recognition of same-sex relationships and, in particular, about the cross-border recognition of same-sex marriages. Accordingly, the Court is not asked to rule on whether the EU – as the US – can require Member States to open marriage to same-sex couples in their own territory. After all, it is clear that even if it was asked to rule on this, its hands would be tied since – as it confirmed not long ago in cases involving sexual orientation discrimination (see, for instance, Römer and Hay) – ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. This means that whether same-sex couples should be allowed to marry in a Member State, is a matter entirely left to be decided by the said Member State. Refusing to allow same-sex couples to marry does, of course, violate a number of human rights, however because the issue of determining the marital status of persons falls within the exclusive competence of the Member States and because the way that each Member State decides to regulate this matter has not – so far – interfered with the exercise of rights stemming from EU law and/or with the execution of any of the EU’s policies, the issue falls outside the remit of the Court.

The question, therefore, is whether the Court in Coman should rule that the term ‘spouse’ in Directive 2004/38 must be read to include the same-sex spouse of a Union citizen and, thus, to effectively require all Member States (even those that have not opened marriage to same-sex couples in their territory) to admit within their territory the same-sex spouse of Union citizens who move between Member States.

In my view the answer to this question is ‘yes’, and this is for the following reasons.

First, if the ECJ rules that the term ‘spouse’ does not include same-sex spouses, this will amount – in effect – to granting a license to the Member States to restrict the free movement rights of LGB Union citizens who are in a same-sex marriage. It is hard to believe that a Union citizen who is happily married in a Member State would willingly move to another Member State where his/her same-sex spouse would not be allowed to accompany or join him/her; or, assuming that the spouse could join him/her in the host State on another basis (i.e. not as his/her spouse), it would be highly unlikely that (s)he would be willing to move to a Member State where the marriage would not be recognised and, thus, where his/her spouse and him/her would not be treated as a couple for the purposes of taxation, social security, property law, inheritance and so on, with the obvious disadvantages that would ensue from this.

In fact, the current lack of clarity that persists with regards to the mutual recognition of same-sex marriages in EU Member States and the consequent inconvenience that emerges as a result of this uncertainty is, in itself, an obstacle to free movement: being unsure as to whether your same-sex spouse may be able to join you in another Member State and/or be considered as your spouse there is highly likely to deter your exercise of free movement. The ECJ cannot interpret a provision of EU law (namely, Article 2(2)(a) of Directive 2004/38) in a way which permits Member States to breach other provisions of EU law (namely, the EU free movement provisions). A measure which impedes the exercise of free movement rights cannot be justified if it violates fundamental human rights protected under EU law (see, for instance, Carpenter, para. 40). Hence, a restriction on free movement which emerges as a result of the failure of a Member State to recognise a same-sex marriage, cannot be justified since, as will be seen below, it breaches a number of fundamental human rights protected under EU law.

Second, the ECJ – as one of the EU institutions – is bound by the EUCFR (see Art. 51(1) EUCFR), in interpreting EU law provisions (including Article 2(2)(a) of Directive 2004/38) it must ensure that it does not breach the prohibition of discrimination on the ground of sexual orientation, laid down in Article 21 EUCFR. An interpretation of the term ‘spouse’ which excludes from it same-sex spouses is, clearly, directly discriminatory on the ground of sexual orientation and is, thus, contrary to Article 21 of the Charter. Furthermore, the 2004 Directive itself provides in its Recital 31 that in accordance with the prohibition of discrimination contained in the Charter (in Article 21), Member States must implement it without discrimination between its beneficiaries on, inter alia, the ground of sexual orientation. Accordingly, the Directive itself appears to be requiring an interpretation of its provisions – including of the term ‘spouse’ – which does not give rise to discrimination against same-sex couples.

A third and related reason is that following (as required by Article 52(3) EUCFR) the ECtHR’s recent judgment in Pajić v Croatia (see the comments by Hodson here) which was a case about the family reunification rights of an unmarried same-sex couple, the refusal to recognise same-sex marriages validly recognised in another Member State and the consequent refusal to grant family reunification rights to same-sex married couples when they move between Member States – can amount to a breach of Article 7 EUCFR (the right to private and family life) when read together with Article 20 EUCFR which states that ‘Everyone is equal before the law’, given that same-sex married couples are treated differently, under the law, from opposite-sex married couples who, under EU law, enjoy automatic family reunification rights when they move to another Member State. Although – as confirmed in Pajić (para. 80) – the right to family life (as protected under Article 8 ECHR) does not give the right to a family member to enter or to settle in a particular country for family reunification purposes, States must exercise their ‘immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for his or her private or family life and the right not to be subject to discrimination’. Hence, although Article 7 EUCFR cannot, if interpreted in the same manner as Article 8 ECHR, be relied on to require a Member State to admit within its territory the (opposite-sex or same-sex) spouse of a Union citizen, when that provision is read together with Article 20 EUCFR, it requires same-sex spouses to be admitted to the territory of the host State under the same conditions that are imposed on opposite-sex spouses (i.e. automatically).

Fourth – and drawing inspiration from the US Supreme Court’s judgment in the Obergefell v. Hodges case – the refusal of the ECJ to consider same-sex marriages as valid marriages for the purposes of Directive 2004/38, is liable to amount to a breach of another human right protected under the EU Charter of Fundamental Rights, namely, the right to human dignity (Article 1 EUCFR). The argument goes as follows: forming intimate relationships with other individuals, choosing to formalise these relationships and consequently attaching to them a legal status is an exercise of personal autonomy, which is an aspect of the dignity of every human being. All human beings are equal in dignity. By prohibiting discrimination on the ground of sexual orientation, the EU has accepted the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When the EU institutions and/or the Member States refuse to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, they treat such relationships differently from opposite-sex relationships and they seem to be considering the relationship choices of LGB individuals who are in a same-sex relationship as inferior to opposite-sex relationships and, hence, as not having the same moral worth as the latter. Treating LGB Union citizens as second-class citizens by failing to recognise and respect their choices in forming intimate relationships and formalising them can, therefore, amount to a violation of their right to human dignity.

Finally – following ECtHR case-law (see, for instance, Wagner) – by interpreting Directive 2004/38 in a way which refuses to recognise a family status (i.e. that of a ‘spouse’) the ECJ may be acting in a way which violates the right to family life, as this is protected under Article 7 EUCFR. In addition, by allowing Member States to relegate same-sex spouses to one of the other categories of family members laid down on the list provided in Directive 2004/38 and to strip them of their legal status – as asked in some of the questions referred to the ECJ in Coman – will, also, be contrary to EU law as this will not, only, amount to a breach of Article 7 EUCFR but will, also amount to a breach of the EU free movement provisions, given that migrant Union citizens will lose the automatic right to be accompanied or joined by their spouse in the Member State where they move, with the obvious deterrent effect that this may have.

It is true that as late as 2001, the ECJ attached a heteronormative meaning to the term ‘marriage’ noting, in its judgment in the case D and Sweden v. Council, that it ‘means a union between two persons of the opposite sex’. In subsequent years, however, it was made clear that the EU does recognise same-sex marriages as valid marriages for the purposes of EU law (for instance, when it comes to the application of the EU Staff Regulations – see the W case). Nonetheless, for the reasons stated above, the ECJ should now take the additional step of clearly holding that all Member States (and even those that do not provide legal recognition to same-sex relationships in their territory) must recognise same-sex marriages validly contracted in another Member State in situations that fall within the scope of EU law. A marriage validly contracted in one Member State – whether between two persons of the same- or two persons of the opposite-sex – should be considered a ‘marriage’ in every other Member State and, thus, the parties to a same-sex marriage should, also, be considered ‘spouses’ for the purposes of Directive 2004/38. This will mean that all EU Member States will be required by EU law to recognise same-sex marriages validly entered into in another Member State, and this will be so irrespective of whether they have opened marriage to same-sex couples in their own territory.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau and D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements in the EU’ EUI Working Paper Law 2016/09 available here

C. Bell and N. B. Selanec, ‘Who is a “spouse” under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex marriage before the courts and before the people: the story of a tumultuous year for LGBT rights in Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape’ (2016) 17 German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell and the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last in Translation? How to Interpret “Spouse” in the EU Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195