Just married!… right? Same-sex marriage and free movement of EU citizens – an account on the Opinion of Advocate General Wathelet in Coman and Others

 

pexels-photo-236131

 by Sophie Perez Fernandes, Junior Editor


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].
Continue reading “Just married!… right? Same-sex marriage and free movement of EU citizens – an account on the Opinion of Advocate General Wathelet in Coman and Others”

A brief reference to the ongoing review of the EU system of social security coordination

michelangelo-71282_960_720

by Sophie Perez Fernandes, Junior Editor

The right to move and reside freely within the territory of the Member States, which is granted to EU citizens and members of their families, is one of the freedoms on which the European integration process is based. Apart from fundamental economic freedom, which is embedded in the professional freedoms guaranteed by the Treaties as pillars of the internal market (free movement of workers, freedom of establishment and freedom to provide services)[i], the free movement and residence of nationals of the Member States forms part of the essential core of their status as EU citizens[ii], as well as being recognized as a fundamental right[iii].

Although so framed in EU primary law, this right to move and reside freely would not be practicable if were not protected the social security rights of those who actually exercised it by moving from one Member State to another, accompanied or not by their families. For the so-called dynamic citizens, it was necessary for EU law to provide them with adequate protection in the fields of social security with the aim of avoiding that the particularities of the national social security systems of the different Member States would hinder the exercise of their freedom of movement. The first EU regulation in this area dates back to the 1950s, and over the ensuing decades the normative and jurisprudential acquis framing the coordination of social security systems has been solidified and complexified, seeking to balance the preservation of the competences of the Member States in the fields of social security and to ensure the continuity of social protection of individuals beyond Member States.
Continue reading “A brief reference to the ongoing review of the EU system of social security coordination”