The “gay marriage” case that never was: Three thoughts on Coman, Part 2 – Michael Rhimes

6 June 2018 by Guest Contributor

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.

I have three points on the judgment, which is summarised in part 1.

1. A narrow judgment: A free movement case, not a gay marriage one.

The judgment is a narrow one. On a basic level, for the “Coman” rule to be engaged, a number of conditions must be satisfied:

1. 1. At least one of the parties to the marriage must be a Union national;
   2. One of the Union nationals in question must have exercised their free movement rights (otherwise Article 21 TFEU will not be engaged, see C-434/09 McCarthy, paras 49 to 55)
   3. The couple must be married in a Member State that solemnises same-sex marriage.

In addition, the reasoning of the Court focuses on the right to free movement in Article 21 TFEU. The Coman judgment is not one that is predicated upon the growing recognition of same-sex marriage within the EU (on this, see my third comment, and para 56 to 58 of the Opinion) or, indeed, on fundamental rights (on this, see my second comment). Member States have to recognise the third country same-sex spouse of a Union citizen, but only so that Union citizen may freely exercise their free movement rights.

Of course, the mere fact that the judgment is narrow is not to be held against it. First, the Court cannot define the notion of marriage as a matter of national law but is limited to giving authoritative interpretations of EU law such as the definition of spouse in Article 2(2)(a) of the Directive. Second, Member States retain the competence to define the institution of marriage and thus restrict it to heterosexual couples (see para 37). The fact that the Court therefore approached the question in Coman, in effect, as a “free movement” question rather than a “gay rights” issue cannot be faulted. In the words of the Advocate General at para. 38 “the legal issue [in Coman] is not that of legalization of marriage between persons of the same sex but that of the freedom of movement of a Union citizen”.

That said, another approach could have been considered that would have recognised the broader issues of gay rights that underlay the question referred by the Romanian Constitutional Court. I direct the reader to (Chloë Bell and Nika Selanec, ‘Who is a “Spouse” Under the Citizens’ Rights Directive? The Prospect of Mutual Recognition of Same-Sex Marriages in the EU’  (2016) European Law Review 653-683) and (Alina Tryfonidou, EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition (2015) Columbia Journal of European Law 195) where these arguments are considered in much greater detail. What follows borrows heavily from them.

This alternative approach would lie in “mutual recognition”. Bell and Selanec illustrate the notion of mutual recognition by reference to C-120/78 Cassis de Dijon para. 14 where the Court stated that

There is… no valid reason why, provided that they have been lawfully produced and marketed in one of the member States, alcoholic beverages should not be introduced into any other member state”

This idea (in effect, if it is good enough for one Member State then it is good enough for the rest) has been applied in a wide range of areas, from asylum law (C‑411/10 N.S. paras 82 and 83), to intra-EU Bilateral Investment Treaties (C-284/16 Achmea, para. 58). An approach based on mutual recognition would effectively transpose Cassis de Dijon to marriage, holding, to use the same terms as Cassis, that “there is no valid reason why, provided that it has been lawfully solemnised in one Member State, marriages should not be recognised in any other Member State”.

This would have been, from an EU gay rights perspective, a much stronger approach. Underlying the principle of mutual trust is the idea that, as recently put in C-284/16 Achmea para. 34, that the Member States share the set of common values listed in Article 2 TEU. Those values include “respect for human dignity, equality, respect for human rights, including the rights of persons belonging to minorities” and an attitude of “pluralism, non-discrimination and tolerance”.

On this approach, Member States, as part of the common heritage of European values described in Article 2 TEU, would be required to recognize marriages solemnised in other Member States. This provides a more robust foundation for the result in Coman. Mr Clabourn Hamilton’s right to be given a residence permit would not be justified under the guise of a parasitic right to ensure the free movement rights of his husband (Mr Coman, a Romanian national) but would stem from Romania’s commitment to the core values of respect, non-discrimination and tolerance (etc) that underpin the EU legal order.

(This approach, however, would have the drawback of applying only to marriages solemnised in the EU, as the mutual recognition argument can apply only to those states that are part of the EU. At any rate, the judgment seems limited to marriages solemnised in the EU, see paras 28, 40 and the first paragraph of the operative part of the judgment (the part in bold at the end))

2. A (lack of) fundamental rights analysis

Second, it is interesting to note that the Court dedicates little of the judgment to analysing the fundamental rights at stake (see para 49 to 51). This is not without significance. The question referred by the Constitutional Court of Romania (my emphasis) reads as follows:

Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

In other words, the Romanian Constitutional Court was explicitly asking the CJEU to provide guidance on the interpretation of the Charter provisions that confer the right to private and family life (Article 7) the right to marry and the right to found a family (Article 9) the right to non-discrimination on the grounds of sexuality (Article 21) and the right to free movement (Article 45). With the exception of Article 7, none of these provisions is considered explicitly in the judgment (the right to free movement is considered in the judgment, but not as a “Charter” right but as a right under Article 21 TFEU).

And as to Article 7, which is discussed at paras 49 to 51, it is not easy to interpret those paragraphs. Paragraph 50 restates the case-law of the European Court of Human Rights according to which same-sex marriage falls within the notions of private life and family life protected under Article 8 of the European Convention on Human Rights (and thus Article 7 of the Charter). But those paragraphs do not go any further than that; they “flag up” that case-law but do not draw any conclusions from it. Further, the operative part of the judgment (the part in bold at the end, see also para 28) makes no mention of any of the Charter rights the Romanian Constitutional Court asked the CJEU to provide guidance on.

One might get the impression that the Court sought to avoid saying that the refusal to solemnise same sex relationships is a breach of the right to family life. Although this is understandable in light of the fact that EU law does not require Member States to solemnise same sex marriages, it may be seen as having the unenviable consequence of “dodging” a crucial part of the question.

3. United in diversity: Coman as the result of judicial intervention

A third and final point. In varietate Concordia rings the motto of the EU: United in Diversity. Certainly, there is a great diversity in the recognition and protection of same-sex relationships. Six Member States do not provide any legal recognition whatsoever to same-sex relationships; thirteen Member States allow same sex marriage; and yet others grant forms of legal recognition that fall short of marriage.

The difference in public opinion is also stark. In 2015, whilst 91 and 90 % of the populations of Netherlands and Sweden responded positively to the statement that “Same sex marriages should be allowed throughout Europe”, only 19 and 17 % responded positively to that statement in Latvia and Bulgaria (see Discrimination in the EU In 2015, Special Eurobarometer 437, p. 50). In addition, while there has been progress in many Western and Northern European Member States (and Malta), there have also been “counter trends” where Member States in Central and Eastern Europe have inscribed the heterosexual nature of marriage in their respective constitutions (see here, p 107).

What to make of this divergence? In the short term, I think Coman needs to be understood in this light. Free movement rights should keep afloat of the growing tide of support for gay marriage in parts of the EU. However, while article 81(3) TFEU provides that the EU has competence to edict measures in the field of “family law with cross-border implications”, such measures require the unanimous approval of the Council (this is the EU body that comprises the 28 heads of state of the Member States). Given the strength of diverging views of the Member States, it is unlikely that the required unanimity to, for example, make it explicit that Article 2(2)(a) of the Directive extends to same-sex spouses, would have been forthcoming. Judicial intervention was the only realistic venue for reaching the result in Coman. In the long term, a European consensus on “gay rights” may take a while to emerge.