The CJEU said yes! Partners in same sex marriage are “spouses” Part 1 – Michael Rhimes
5 June 2018
Coman and others, Case C‑673/16, 5 June 2018 – read judgment
Can the term “spouse” in Article 2(2)(a) of the Citizenship Directive (Directive) refer to a spouse of the same sex as the other party to the marriage (same-sex spouse)?
This (fairly dry) question was at the heart of the Coman case. Of course, as the Advocate General recognised in his Opinion, para. 2 it touched on other (more juicy) questions of dignity and the diverging understandings of marriage in the 28 Member States.
In this post I will present the facts and reasoning in the judgment. My following post will offer three comments on it.
Mr Coman, a dual national of Romania and the US, met Mr Clabourn Hamilton, a US national, in New York in 2002. They married in Brussels (Belgium) in 2010. In 2012, Mr Clabourn Hamilton asked the Romanian authorities to provide him with the documents to allow him to stay in Romania, with Mr Coman, as his spouse, for longer than three months.
The request was denied.
The couple challenged this refusal. The authorities pointed to the Romanian Civil Code which prohibits the recognition of same sex-marriages, both in Romania and those solemnised abroad. The case wound its way to the Romanian Constitutional Court, which referred a number of questions to the CJEU.
The question which concerns us presently is whether, in effect, given Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, the term “spouse” in the Directive includes a same-sex spouse?
The Court said yes (pun intended).
Reasoning behind the CJEU’s Decision
As a preliminary point, the Directive does not confer rights on a Union citizen against a state of which they are a national. Thus, it does not grant a Romanian national like Mr Coman, and, by extension, Mr Clabourn Hamilton, against Romania. (See Article 3(1) “This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national” (emphasis added), and C-165/16 Lounes paras 33 to 37).
The reasoning in Coman is therefore founded on Article 21 of the Treaty on the Functioning of the European Union (TFEU), which confers the right to free movement (Article 31, para 31 of the judgment). That includes the right to lead a normal family life, together with family members, in all the Member States. Article 21 TFEU, unlike the Directive, thus confers rights against the home Member State of an EU national. (See, C-370/90 Singh paras 19 to 21; Coman para 32).
1. What is a “spouse”?
The Court considered whether a same-sex spouse could constitute a “family member”. As part of this analysis, it applied the Directive “by analogy” (para 33).
The wording of Article 2 of the Directive defines “family member” as including a “spouse” (see Article 2(2)(a)). The Court noted that term “spouse” is gender neutral; on its natural interpretation it can extend to a same-sex spouse (see para 35)
The context also supported such a reading. In short, while the notion of a “partner to a registered partnership” had a renvoi to the legislation of the host Member State, the notion of “spouse” had no such condition. Indeed, Article 2(2)(b) of the Directive states that a “family member” includes a “partner with whom the Union citizen has contracted a registered partnership”, but only if the legislation of the host Member State treats such registered partnerships as equivalent to marriage. There is no similar condition that attaches to the notion of “spouse” in Article 2(2)(a) of the Directive. Thus, reasoned the Court, unlike “partner with whom the Union citizen has contracted a registered partnership” under Article 2(2)(b), it is immaterial whether the host Member State recognises same-sex marriages to qualify as a “spouse” under Article 2(2)(a). (para 36)
Nonetheless, the Court recognised that “marital status and the benefits flowing therefrom” are matters which fall within the competence of the Member States, who are therefore free to provide, or not provide, for same-sex marriage (para 37). However, Member States must still respect EU law in the exercise of that competence. Member States cannot fetter the free exercise of Article 21 TFEU rights, even in areas that fall within their competence (para 38). In that regard, if a same sex spouse were recognised a family member only in those Member States that recognise same sex marriage, the free movement right under Article 21 TFEU could only be meaningfully exercised in those Member States and not, as that Article provides, in all Member States. (para 39)
Put otherwise, although Member States can decide whether to allow same sex marriage to be solemnized in their Member State, they cannot prejudice the effectiveness of their national’s citizenship rights under Article 21 TFEU. They cannot, therefore, refuse to recognise same sex marriages validly solemnized in another Member State (para 40).
2. Was the restriction on free movement rights proportionate?
The Court then considered the question of proportionality. Rights, such as those in Article 21 TFEU, can in principle be limited (i.e. extended only to the third country spouses who are in a heterosexual marriage with a Union citizen), but only if that restriction pursues a legitimate objective in a proportionate manner.
Some Member States argued there was a legitimate objective in the preservation of the heterosexual nature of marriage. This, furthermore, as put by Latvia in the hearing (see Opinion, para. 40), was a question of national constitutional identity, which the Union is required to respect. (Article 4(2) TEU “The Union shall respect the equality of Member States before the Treaties as well as their national identities”, emphases mine).
The Court rejected this argument on two bases. The first, terse, argument reiterated that the Union does indeed respect the national identity of the Member States (para 43). The second, subsidiary, argument, was that the scope of “public policy” in Article 4(2) TEU can be relied on only if there is a “genuine and sufficiently serious threat to a fundamental interest of society” (para 44). Such a threat was not present. That was because the duty to recognize same-sex marriages was limited to a) the granting of a residence permit to a third country national for the purposes of allowing the full exercise of the Union citizen’s free movement rights and b) those marriages solemnized in another Member State. Thus, it left intact the constitutional prerogative of a Member State to define, as a matter of national law, the institution of marriage as between a man and a woman (paras 45 and 46).
Finally, the Court stated that a restriction on free movement rights has to comply with the fundamental rights guaranteed in the Charter (para. 47). Those rights, which are at least equivalent to like rights in the European Convention on Human Rights, protect same-sex relationships as facets of private life and family life in Article 7 of the Charter. To that end, the Court relied on a recent judgment of the European Court of Human Rights, Oliari and Others which states that “it is undisputed that the relationship of a same-sex couple like the applicants falls within the notion of “private life” within the meaning of Article 8.” (para 50)
Taken together, it was held that there was no proportionate restriction of the free movement rights under Article 21 TFEU, and that a Member State could not refuse to grant a residence permit to a spouse of a Union national on account of that spouse being of the same sex.
Under Coman, “spouse” within the meaning of Article 2(2)(a) of the Directive includes a same-sex spouse. The upshot of this case is that Member State cannot deny (in principle) the free movement rights of a Union national who has a same-sex spouse by refusing to grant that same-sex spouse a residence permit, even if, as a matter of national law, same-sex marriage is not permitted under national law.
Critically, Coman does not require a Member State to solemnize same-sex marriage. The choice of whether to allow same-sex marriage is, as a matter of EU law, a competence which belongs to the Member States. However, although Member States do not have to solemnize same sex marriages as a matter of national law, they do have to recognize those solemnized in other Member States.
Michael Rhimes is the fourth référendaire to Judge Vajda at the Court of Justice of the European Union. He was not involved in the Coman case. This blog post is written in a purely personal capacity and reflects only the author’s views.