by Sophie Perez Fernandes, Junior Editor

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Lapalissade stands for tautology, an utterly obvious truth.

Last week, Advocate General Wathelet, in his Opinion in Coman and Others, considered that the term ‘spouse’ used in Article 2(2)(a) of Directive 2004/38 on the right of EU citizens and their family members to move and reside freely within the territory of the Member States, should be given a uniform interpretation as an autonomous concept of EU law and, under such interpretation, that the term ‘spouse’ includes, in the light of the freedom of residence of EU citizens and their family members, spouses of the same sex.

Isn’t/Shouldn’t it be a lapalissade?…

The protection of family as such is guaranteed by numerous international legal instruments of protection of fundamental rights, namely the Universal Declaration of Human Rights (Article 16), the International Covenant on Civil and Political Rights (Article 23) and the International Covenant on Economic, Social and Cultural Rights (Article 10). In these instruments, family is regarded as “the natural and fundamental group unit of society”. The protection of family is also guaranteed by the ECHR, which, in Articles 8 and 12, protects, respectively, the right to respect for private and family life and the right to marry – provisions that are, in turn, on the basis of Articles 7 and 9 CFREU concerning the right to marry and the right to found a family. Also, “respect for family life” was considered by the ECJ as “one of the fundamental rights which (…) are recognized by Community law” even before the CFREU had been proclaimed^[i].

However natural and fundamental group of society family may be, there is no consensus on what family is when it comes to marriage as a legal institution of family… The personal, social and legal concept of marriage strongly varies from one person to another and from one State to another – Member States of the EU included. And so, the legal recognition of same-sex relationships, particularly through marriage, gives rise to heated and even fracturing debate. As a particularly sensitive issue and considering the conflicting of views among citizens and Member States, the EU has tried to stay elusive. But there is a small tiny problem of fundamental proportions though…which relates to truly lapalissades…

Free movement in imbedded in the EU genetic code, including free movement of actual people… It so happens than when EU citizens (and, for the purposes of the case and the argument, let us just consider EU citizens) move within EU territory, enjoying the wonders that result from their (fundamental!) right to move and reside from one Member State to another, they stubbornly do so as human beings – and not robots…at least not yet… And as Advocate General Sharpston famously phrased it in her Opinion in Zambrano, “[they] fall in love, marry and have families. The family unit, depending on circumstances, may be composed solely of EU citizens, or of EU citizens and third country nationals, closely linked to one another.” And, to the point, sometimes, a EU citizen may fall in love with a third country national, they do marry in a Member State (other than the Member State of which the EU citizen is a national) and both share the same sex. Quid EU law?

The Coman and Others case concerns the situation of Mr Relu Adrian Coman, a Romanian citizen, who married Mr Robert Clabourn Hamilton, a US citizen, in Belgium and now seeks a residence permit for his husband to live and work in Romania. Following the refusal of their request, they brought an action against the decision and raised a plea of unconstitutionality, plea on which the Curtea Constituţională was requested to rule on. The Constitutional Court of Romania had doubts as to the interpretation to be given to several terms employed in Directive 2004/38, namely the term ‘spouse’, and decided to stay proceedings and request a preliminary ruling from the ECJ. Advocate General Wathelet rendered his Opinion on 11 January 2018 and the judgment of the ECJ is eagerly awaited.

It is a settled point concerning the allocation of competences between the EU and the Member States that matters relating to the marital status of persons fall within the competence of the Member States. But there is a difference between the issue of allocation of competences (competences conferred upon the EU and competences that remain with the Member States) and the circumstance of the exercise of the competences conferred upon the EU affecting matters that remain within the competences of the Member States. Such is the case regarding the regulation of the right of EU citizens to move and reside freely within the territory of the Member States, closely linked to family matters such as the marital status of persons – because, again, EU citizens move and reside from one Member State to another as human beings and not robots.

So, secondary legislation, whether sufficiently or not, has always endeavoured to safeguard the resulting situations. The relevant provisions currently in force are provided by Directive 2004/38, significantly complemented by their interpretation in the ECJ case-law. Importantly, the ECJ held that the family reunification rights laid down in Directive 2004/38 apply ‘by analogy’ to EU citizens, as Mr. Coman, who return to their Member State of nationality after having exercised their free movement rights[ii]. And so, the question whether or not the term ‘spouse’ used in Article 2(2)(a) of Directive 2004/38 applies to a third-country national of the same sex as the EU citizen to whom he or she is lawfully married in accordance with the law of a Member State other than the host State is of relevance to the Coman and Others case. If a positive answer is given, then Mr Hamilton would be entitled to a derived right of residence as a family member (spouse) of a EU citizen in the Member State of which that EU citizen is a national (Romania) on the basis of Article 21(1) TFEU and the analogical application of Directive 2004/38.

According to both Advocate General Wathelet, and Professor Alina Tryfonidou in a prior comment (here), the answer is yes.

In particular, the Advocate General calls for an autonomous and uniform interpretation throughout the EU of the term ‘spouse’ within the meaning of Directive 2004/38 which is independent of sexual orientation. The approach is based on a literal, contextual and teleological interpretation of Directive 2004/38, in particular its Article 2(2)(a). It follows from the Opinion that:

• the wording of Article 2(2)(a) of Directive 2004/38 is neutral, allowing for the “the term ‘spouse’ to be interpreted independently of the place in which the marriage was celebrated and of the question of the sex of the persons concerned” (para. 53);
• a contextual and developing interpretation of the term ‘spouse’ is to be considered in light of a general movement in (European) society regarding legal recognition of same-sex marriage that “corresponds to a universal recognition of the diversity of families”; in this context, the Advocate General points out that “while at the end of the year 2004 only two Member States [the Netherlands and Belgium] allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria too, by 1 January 2019 at the latest” (para. 58);
• a contextual interpretation of the term ‘spouse’ within the meaning of Article 2(2)(a) of Directive 2004/38 also has to consider the fundamental rights associated with the term, namely respect for family life (Article 7 CFREU) and prohibition of discrimination on grounds of sexual orientation (Article 21 CFREU), and the interpretation of the relevant provisions in both the ECtHR and the ECJ case-law (pursuant to Article 52(3) CFREU), the development of which appear to “to lead to an interpretation of ‘spouse’ that is necessarily independent of the sex of the persons concerned” (para. 66);
• and the objective pursued by Directive 2004/38, that is to facilitate and reinforce the right to move and reside freely within the territory of the Member States which is conferred directly on EU citizens by Article 21(1) TFEU, also supports an interpretation of the term ‘spouse’ independent of sexual orientation (paras. 74, 75 and 76).

The ECJ is now given the opportunity to rule, for the first time, on the concept of ‘spouse’ within the meaning of Directive 2004/38 and EU citizenship in the context of same-sex marriage. The highlighted part should be duly weighted.

First, the interpretation given to the term ‘spouse’ used in Article 2(2)(a) of Directive 2004/38 is to be valid, according to its very wording, “for the purposes of this Directive”. Thus, the interpretative solution adopted will apply to cases directly covered by the scope of application of Directive 2004/38 and also to those cases to which the Directive applies by analogy on the basis of Article 21(1) TFEU. That is to say, the interpretative solution adopted will far reaching consequences within the framework of EU citizenship as the “fundamental status of nationals of the Member States”[iii]. Those consequences are, at first, to the purposes of paragraphs (c) and (d) of Article 2(2) of Directive 2004/38 concerning respectively to the direct descendants who are under the age of 21 or are dependants of the EU citizen and of his or her spouse and the dependent direct relatives in the ascending line of the EU citizen and of his or her spouse.

Second, the highlighted part is the key for understanding the issues of competences mentioned above – also considered by both Advocate General Wathelet and Professor Alina Tryfonidou. It is not a matter of the EU, through the ECJ, legalising same-sex marriage or imposing on the Member States the legal recognition of same-sex marriage in their legal order, but only of recognising the effects of a marriage between persons of the same sex entered into in one Member State when the married couple moves to another Member State, including the Member State of which the married EU citizen is a national – that is, only for the purposes of free movement within the territory of the EU. This interpretative solution does not adversely affect the competences of the Member States as regards the legal recognition of same-sex marriage and, if not for other reasons, ensures legal certainty. Because, as lapalissades go, same sex people married to each other are, in the popular expression, just married! And, in the words voiced by Frank Sinatra, you can’t have one without the other.

[i] See Judgment of the Court in Commission v. Germany, 249/86, EU:C:1989:204, para. 10.

[ii] See Judgment of the Court in O. and B., C‑456/12, EU:C:2014:135, paras. 50 and 61. This line of case-law goes back to the Judgment of the Court in Singh, C‑370/90, EU:C:1992:296.

[iii] See Judgment of the Court in Grzelczyk, C-184/99, EU:C:2001:458, para. 23.

Picture credits: Just married by Ma Boîte A Photos.