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

 

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 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”

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Social citizenship: quo vadis? – Inaugural Editorial

by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor

The European citizenship as the “the fundamental status of nationals of the Member States”[1] has been shaping the process of integration itself. Unquestionably linked to the protection of fundamental rights, European citizenship has always been focused on the approximation of the legal status of the nationals of Member States, providing the legal base to the eradication of legal gaps of protection and, therefore, contributing to the further development of the integration process. However, recent case law of the ECJ seems to be influenced by the current political-economic dynamics that characterise the current crucial momentum that we are facing, raising perplexity and concern when compared to past rulings which compose the jurisprudential acquis in matters of citizenship and fundamental rights – mainly in what concerns citizens that move in the Union seeking jobs and the maintenance of the status of migrant worker.

The Dano ruling of 2014[2] represents a setback in regard to the previous case law of the ECJ regarding the granting of special non-contributory cash benefits to citizens who are not economically active. Despite the fact that, in this concrete case, a residence certificate of unlimited duration was previously granted to the applicant – a fact apparently disregard by this ruling – the national court considered that the main proceedings concerned persons who could not claim a right of residence in the host State by virtue of Directive 2004/38/CE. The ECJ accompanied the reasoning of the national court stating that the access to social benefits is dependent on the residence in the host Member State as set out by Article 7 of the mentioned Directive – i.e. sufficient economic resources and health insurance[3]. The goal would be to prevent economically inactive citizens from becoming an unreasonable burden on the social assistance system of the host Member State[4], or from using the host Member State’s welfare system to fund their means of subsistence[5]. Admitting otherwise, according to the Court, would go against the objectives of the Directive[6].

Continue reading “Social citizenship: quo vadis? – Inaugural Editorial”