by Sophie Perez Fernandes, Junior Editor

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In a previous post, a report was given of the Opinion of Advocate General Wathelet, in the Coman and Others case. Based on a literal, contextual and teleological interpretation of Directive 2004/38, in particular its Article 2(2)(a), the Advocate General called for an autonomous and uniform interpretation throughout the EU of the term ‘spouse’ within the meaning of the directive, an interpretation which is independent of sexual orientation. Now that the European Court of Justice (ECJ) has delivered its ruling, the relevant interpretation of the term ‘spouse’ within the meaning of Directive 2004/38 has been made clear.

The Coman and Others case concerns the situation of Mr. Relu Adrian Coman, who holds both Romanian and American citizenship, and who married Mr Robert Clabourn Hamilton, a US citizen, in Belgium in 2010. Since the end of 2012, the couple have taken steps so that Mr Hamilton could, as a member of Mr Coman’s family, obtain the right to lawfully reside in Romania for a period of more than three months. Their request was denied on the basis that, under the Romanian Civil Code, marriage between people of the same sex is not recognised, and that an extension of Mr Hamilton’s right of temporary residence in Romania could not be granted on grounds of family reunion. Thereafter, the couple brought an action against the decision seeking, inter alia, a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement in the EU. In that dispute, they also argued that the relevant provisions of the Civil Code were unconstitutional, plea on which the Curtea Constituţională (Constitutional Court, Romania) was requested to rule on.

In turn, the Constitutional Court of Romania had doubts as to the interpretation to be given to the term ‘spouse’ within the meaning of Directive 2004/38, namely in light of several provisions of the Charter of Fundamental Rights of the European Union (CFREU) and relevant case-law of both the ECJ and the European Court of Human Rights (ECtHR).

Firstly, the ECJ clarified the legal basis in light of which the questions referred would be answered to (paras. 18-27). The Coman and Others case concerns the return of a EU citizen to his Member State of nationality (Romania) after residing in another Member State (Belgium) pursuant to and in conformity with the conditions set out in Directive 2004/38. The return of EU citizens to their Member States of nationality is not covered by the directive which only applies to EU citizens who move to or reside in a Member State other than that of which they are a national [Article 3(1)]. However, following established case-law, the ECJ recalled that the effectiveness of the free movement rights conferred on EU citizens by Article 21(1) TFEU requires that the family life created or strengthened in a Member State other than that of which the EU citizen is a national may continue when he or she returns to his or her Member State of nationality, namely through the grant of a derived right of residence to the third-country national family member concerned. Granted on the basis of Article 21(1) TFEU, the conditions under which such a derived right of residence may be granted must not be stricter than those laid down by Directive 2004/38 that, therefore, applies (only) by analogy to the case at hand.

Accordingly, the ECJ went on to clarify whether or not “Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex” (para. 28) and therefore addressed the main issue of the case – whether or not the term ‘spouse’ within the meaning of Directive 2004/38 applies to the same-sex spouse of a EU citizen.

The ECJ made it clear that “the term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned” (para. 35). Furthermore, as the term ‘spouse’ used in Article 2(2)(a) of Directive 2004/38 “refers to a person joined to another person by the bonds of marriage” without any reference to relevant legislation of the Member States, no Member State may “rely on its national law as justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state” (paras. 34 and 36).

The ECJ was also attentive to the particularly sensitive nature of the issue, considering the conflicting of views among Member States on what family is when it comes to marriage as a legal institution of family. The underlying issues of competences were firstly addressed in the ruling (paras. 37-40). As was previously explained in this blog, 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. As the ECJ recalled, “a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States and EU law does not detract from that competence”, with the consequence that “Member States are (…) free to decide whether or not to allow marriage for persons of the same sex” (para. 37). However, “in exercising that competence, Member States must comply with EU law, in particular the Treaty provisions on the freedom conferred on all Union citizens to move and reside in the territory of the Member States” (para. 38). At the intersection of this competence crossroads, it follows – held the ECJ – that “the refusal by the authorities of a Member State to recognise, for the sole purpose of granting a derived right of residence to a third-country national, the marriage of that national to a Union citizen of the same sex, concluded, during the period of their genuine residence in another Member State, in accordance with the law of that State, may interfere with the exercise of the right conferred on that citizen by Article 21(1) TFEU to move and reside freely in the territory of the Member States. Indeed, the effect of such a refusal is that such a Union citizen may be denied the possibility of returning to the Member State of which he is a national together with his spouse” (para. 40).

It should be noted that not only does the ECJ point out that recognising a marriage between persons of the same sex lawfully concluded in another Member State is “for the sole purpose of granting a derived right of residence to a third-country national” – that is to say, only to safeguard the exercise of free movement rights of EU citizens, a point that will be addressed bellow –, but also that said marriage must have been concluded during a period of “genuine residence in another Member State” and “in accordance with the law of that [Member] State”. Therefore, same-sex marriages concluded outside the EU are not covered by the judgment – so that, in these matters, for example, what happens in Vegas, stays in Vegas… Additionally, the ECJ seems to address concerns of what could be called “matrimonial evasion”, making the application of the ruling conditional to the EU citizen concerned having exercised his or her right to move to and taking up genuine residence in another Member State in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 (para. 51) – that is, for a period of longer than three months.

The ECJ went on to address and rebut grounds of public policy and national identity, as referred to in Article 4(2) TEU, raised by some Governments during the proceedings (paras. 41-46). The ECJ was again insistent that obliging Member States to recognise a marriage between persons of the same sex lawfully concluded in another Member State is “for the sole purpose of granting a derived right of residence to a third-country national” and therefore does not undermine the national identity or pose a threat to the public policy of the Member State concerned. The point is not for 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 the exercise of the rights conferred upon EU citizens by EU law, specifically free movement rights. Or, in the words of the ECJ: “the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and, (…), falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law” (para. 45).

This interpretative solution does not adversely affect the competences of the Member States as regards the legal recognition of marriage between persons of the same sex and, if not for other reasons, ensures legal certainty for the so-called dynamic EU citizens. Moreover, as the ECJ pointed out, that interpretation is also in line with fundamental rights as protected under EU law, in particular the right to respect for private and family life guaranteed by Article 7 CFREU (paras. 47-51). By virtue of Article 52(3) CFREU, the ECJ took into account relevant ECtHR case-law related to Article 8 ECHR according to which “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation” (para. 50).

From the above, if follows for the case at hand that Mr Hamilton is 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, as the ECJ ultimately clarified (paras. 52-56), under no stricter conditions than those laid down in Article 7 of Directive 2004/38 applied by analogy to the case.

Some issues are yet to be addressed, such as the possible reverberating effect that this landmark decision might have on Member States that do not recognise marriage between persons of the same sex in order to overcome issues of inverse discrimination. This, however, does not overshadow the positive outcome reached in the Coman and Others case in what concerns equal rights, family life and EU citizenship. The ruling confirms, in the popular saying, that persons married to each other, including persons of the same sex married to each other, are, indeed, just married! And when at least one of them is a EU citizen, well… Member States, again recalling the familiar lyrics voiced by Frank Sinatra, can’t have one without the other!

Picture credits: Just married by Johnida Dockens.