In Coman and Others (C-673/16), the European Court of Justice brings a detailed analysis of the concept of “spouse” within the meaning of Directive 2004/38, in the context of same-sex marriage.

The case in the main proceedings

The situation at issue in the main proceedings concerns a Romanian citizen and his spouse US citizen. The couple met in the US and lived together there for four years, before the Romanian citizen moved to Brussels to work at the European Parliament. The US citizen remained to reside in the US, however, the couple got married in Belgium. Later, the couple has initiated the administrative procedure to enforce the right to family reunification in Romania. The request was dismissed on the grounds of national legislation that provides exclusively for “the union freely consented to of a man and a woman” and prohibits marriage between persons of the same sex.

Questions referred for a preliminary ruling

The questions referred to the ECJ by the Romanian Constitutional Court, cover all the relevant situations provided for by the Directive 2004/38: recognition as spouse of an EU national who has exercised the right to freedom of movement under the Treaty, recognition as “another family member” or a partner with whom the said Union citizen has a durable relationship, duly attested.

In the Opinion delivered on 11 January 2018, Advocate General Wathelet has upheld the rights derived from the marriage concluded in another MS, however, has also briefly assessed a possible recognition as “another family member” or a partner with whom the Union citizen has a durable relationship, duly attested.

The ECJ adopts a stricter approach.

Judgment of the Court (Grand Chamber)

I will rephrase the questions referred to the ECJ (only these responded by the Court), considering the ECJ’s ruling:

1 Whether the case can be assessed under Directive 2004/38?

As expected, affirmative response. Pursuant to Article 21.1 TFEU and settled case-law of the ECJ, Directive 2014/38 is applicable by analogy (spouses of “returning” EU nationals).

2 Whether the ‘family members’ referred to in Article 2(2) Directive 2004/38,” include the third-country national of the same sex as the Union citizen, whose marriage to that citizen was concluded in a Member State in accordance with the law of that state”?

 The Court underlines that:

  • Directive 2004/38, Article 2(2)(a), specifically mentions the ‘spouse’ as ‘family member’.
  • The term ‘spouse’ used in that provision” refers to a person joined to another person by the bonds of marriage “(see Metock and Others, C‑127/08).
  • 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.
  • Whereas, Article 2(2)(b) of Directive 2004/38 (registered partners) refers to the conditions laid down in the relevant legislation of the Member State to which that citizen intends to move or in which he intends to reside, Article 2(2)(a)- “the spouse”, does not contain any such reference.

Interim Conclusion:

  • Same sex marriages cannot be merely excluded from the application of Directive 2004/38 (directly applicable or applicable by analogy).
  • A Member State cannot 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”.

3 Whether as the case at issue, restrictions to the freedom of movement can be imposed

The ECJ observes first that the rules on marriage fall within the competence of the Member States and EU law does not detract from that competence.

However, such competence must be exercised in compliance with the EU law, in particular with the provisions on the freedom of moving.

To allow Member States to impose restrictions as the case at issue (considering whether or not the national law allows marriage by persons of the same sex), would have the effect that the freedom of movement would vary from one Member State to another, and as a consequence, the provisions of the Directive 2004/38, would be interpreted restrictively and deprived of their effectiveness.

Such restrictions may be justified if it is based on objective public-interest considerations and if it is proportionate to a legitimate objective pursued by national law. In that context, the Latvian Government stated at the hearing that such a restriction is justified on grounds of public policy and national identity, as referred to in Article 4(2) TEU.

The ECJ underlines that the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member 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, and as a consequence, “does not undermine the national identity or pose a threat to the public policy of the Member State concerned”.

Lastly, the ECJ observes that a measure hindering the freedom of movement may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter.

The Court underlines that in the light of the case-law of the European Court of Human Rights, the relationship of a same-sex 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.

Insights

  • Article 3.2 Directive 2004/38 (recognition as “another family member” or a partner with whom the Union citizen has a durable relationship, duly attested) refers to the conditions laid down in the relevant legislation of the host Member State. The ECJ disregards the related questions and leaves open the debate on the overriding value of Articles 7 and 21 of the Charter, in the context of the protection of the traditional family that may in some circumstances, amount to a legitimate aim under Article 14 of the ECHR.
  • In his Opinion, Advocate General Wathelet has emphasised the irrelevance of the fact that the couple did not live continuously together in Brussels” In a globalised world, it is not unusual for a couple one of whom works abroad not to share the same accommodation for longer or shorter periods owing to the distance between the two countries, the accessibility of means of transport, the employment of the other spouse or the children’s education. The fact that the couple do not live together cannot in itself have any effect on the existence of a proven stable relationship — which is the case — and, consequently, on the existence of a family life.

The ECJ’s ruling is silent in that regard.

  • In Rozanne Banger(C-89/17), AG Bobek observes that the potential to deter (i.e. the Union citizen will be discouraged from moving, as those personally close to him will be barred from joining him) is hardly compatible with the concept of “returning” citizens (unless the “other” family member already enjoys a status in the Member State of nationality of the Union citizen before moving abroad) :“It is rather difficult to be deterred from a certain course of action by something that I do not know exists at the time when the decision is taken or the future existence of which is at best rather uncertain.”

In context, AG Bobek, underlines a more appropriate justification already acknowledged in the context of prohibition of discrimination. The exercise of free movement shall not entail an ex post disadvantage for Union citizens (see inter alia judgment in D’ Hoop C‑224/98, EU:C:2002:432, paragraph 31).

The present ruling maintains the classical interpretation of the principle of deterrence.