The Free Movement of Same-sex Spouses in the European Union: What Comes Next?
2017-2018 Fulbright Fellow at the University of Michigan Law School
The Court of Justice of the European Union has recently released a preliminary ruling on the free movement of a same-sex couple in the Union. For the first time, it has ruled that the third-country same-sex partner of the applicant (Mr. Coman), enjoys a derivative right of residence in the member state (Romania) of which the EU citizen is a member, upon his return. The right could be granted since the two partners contracted a marriage in another member state of the Union (Belgium.) The Court has adopted to this effect an autonomous definition of the term “spouse,” under Article 2(2)(a) of the citizens’ right directive, that includes same-sex marital couples. The ruling has the practical consequence of precluding Romania, and similarly situated states, from denying right of residence to the third country national on the grounds that same-sex marriage is not legally recognized. This decision is likely to mark a watershed moment in the acquis (case law) of the Court on same-sex couples’ recognition. On the one hand, the holding is doctrinally coherent with precedents conferring freedom of movement rights upon “static citizens.” The doctrine elaborated in these precedents aims to enhance the “effective” enjoyment of the freedom of movement. It is based on the assumption that if no such right of residence were granted, the static citizen would be “discouraged” from moving to another member state, as returning to the home state would risk separating the couple. The case was therefore decided based on Article 21(1) TFEU, enshrining the right of residence in another member state for the EU citizen. It was not decided based on the Directive, as this source only applies to genuine cross-border situations (involving a host country, rather than the home country of the citizen.) On the other hand, the decision is sharply innovative in its interpretation of the term “spouse.” It bears reminding that there is neither substantive family law nor immigration law at the European Union level. The EU is only endowed with the power of harmonizing private international law rules relating to families under Article 81(3) of the TFEU. As a consequence, the definition of marriage in the Union reflects that of member states. Ever since 2001 the Court has ruled that “according to the definition generally accepted by the member states, marriage means the union of a man and a woman.” At the same time, it adopted a liberal definition of “spouse” in cases regarding the status of EU staff and other issues purely internal to the EU. Now the Court goes one step further in extending the autonomous definition under EU law to external matters such as the cross-border recognition of same-sex marriages. This is notable because it is hardly conceivable that, at the time of the drafting of the Directive, the member states intended to include same-sex marriages. At that time, only the Netherlands had introduced same-sex marriage, and the notion of spouse had a robust “traditional” understanding amongst member states. This conclusion is further buttressed by the wording of Article 2(2) of the Directive, which, in addition to spouses, recognizes registered partners as family members. Yet, it does so through a host-state rule, i.e. registered partners qualify only if recognized at the domestic level in the country where the person is moving and “in accordance with the conditions” of domestic legislation. By contrast, no such renvoi exists for the term spouse, and thus one could argue that, pursuant to the linguistic canon of interpretation ubi lex voluit dixit (or expressio unius), the omission is intentional. However, arguments to the contrary exist. A narrow interpretation of the term spouse could be warranted upon considering that the host-state rule is “implied” in the case of marriage. Under this line of reasoning, since marriage is a ubiquitous institution to which states attach the broadest array of benefits, rights and obligations, there is no need to refer to domestic legislation. A second notable aspect of the decision is its express reference to the European Court of Human Rights (“ECtHR”) jurisprudence on “private and family life.” While it is well-established that the two systems of protections are intertwined, and that the fundamental rights, as interpreted by the ECtHR, are “general principles of the Union’s law,” the Court of Justice has sparingly cited the ECtHR in the context of family reunification. The Coman decision epitomizes the dynamic interplay of the two courts. It is no coincidence that the Coman judgment comes after the “bold” Oliari decision of the ECtHR, holding that Italy has a positive obligation to introduce a “specific legal framework” to recognize same-sex couples (meaning that it must confer legal recognition, be it through marriage or civil partnerships or other alternative regimes to marriage). The decision went well beyond the non-interference and negative liberty approach of the Shalk case, which held for the first time that gay couples enjoy a right to “family” life. The Oliari decision thus, while falling short of mandating member states to introduce same-sex marriage, as the U.S. Supreme Court did in Obergefell, was quite audacious if one considers that the Court is a supranational judicial body that can only act under strict conditions (e.g. upon finding a European consensus vis-à-vis the issue.) The Coman decision clearly leaves unanswered a host of questions, among which is, “What is ‘family’ for purposes of EU law?” While it is a pivotal stepping-stone to furthering equality for same-sex couples, it leaves aside the question of whether other functional families, such as non-conjugal unions – for instance, two relatives durably supporting each other – could qualify for family reunification. In Coman, the Court declined to answer the applicant’s questions regarding whether he and his spouse constituted “dependents on members of the household” (under a financial or physical point of view) or “partners in a durable relationship” under Article 3 of the Directive. In particular, first the Advocate General, then the Court seemed to strategically play the card of formal definitions, by adopting the presumption that marital families necessarily enjoy a family life regardless of their functional attributes. This is understandable, again, under a strategic perspective and sits well with the marriage equality arguments adopted by LGB movements in other Western legal systems, like the United States, and Canada. It is easier for Mr. Coman and his partner to argue that they should be recognized as a married couple as they entered a lawful marriage abroad, rather than providing evidence of the attributes of their familyhood. While the preliminary question of who constitutes family is of paramount importance, one cannot demand that the European Union lead the way in shaping fundamental questions of substantive family law. The hope is that the parallel system of the European Convention of Human Rights will answer this question soon by considering the functional rather than presumptive attributes of affected families.
 The preliminary ruling is a judgment on the proper interpretation or validity of the law of the European Union, issued upon the request (or reference) of a member state’s tribunal or court. While national courts are often called upon to applying EU law, the CJEU retains the power to issue interpretative decisions on the material and personal scope of the law of the Union (as well as to their validity), which are binding on the requesting authority.  Case C-673/16, Coman v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, 2018 EUR-Lex CELEX LEXIS 62016CA0673 (June 5, 2018).  Directive 2004/38/EC, of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 2004 OJ (L 158).  See the genuine enjoyment formula jurisprudence from Ruiz Zambrano to Dereci: Case C-34/09, Zambano v. Office national de l’emploi (ONEm), 2011 E.C.R. I-01177; Case C-256/11, Dereci v. Bundesministerium für Inneres, 2011 EUR-Lex CELEX LEXIS 62009CJ0034 (Nov. 15, 2011).  Yet, the directive was applied by analogy, as the condition under which granting the right of residence cannot be stricter than those set out in the directive for non-static citizens. See par. 25 of the decision.  Joined cases C-122/99 P and C-125/99 P, D and Kingdom of Swed. v. Council of the Eur. Union, 2001 E.C.R. I-04319.  Giulia Rossolillo, Corte di Giustizia, Matrimonio tra Persone dello stesso sesso e Diritti Fondamentali: il caso Coman, SIDIBlog (Jul. 8, 2018).  Eugene Buttigieg, The Definition of ‘Family’ Under EU Law, in The Family, Law, Religion and Society in the European Union and Malta 101 (2006).  Article 2(b) of Directive 2004/38/EC, supra note 3.  Case C-673/16, Coman v. Inspectoratul General, 2018 EUR-Lex CELEX LEXIS 62016CA0673 (June 5, 2018) at par. 50.  Id. at pars. 49 and 50.  Katharina Kaesling, Family Life and EU Citizenship. The Discovery of the Substance of the EU Citizens’ Rights and its Genuine Enjoyment, in Family Law and Culture in Europe 300 (Katharina Boele-Wolki et al. eds., 2017).  ECtHR 21 July 2015, Appl. nos. 18766/11 and 36030/11 (Oliari and others v. Italy). Italy has complied with the decision in 2016 by introducing civil unions for same-sex partners (Law no. 76/2016). This point has been brought to my attention by Prof. Robert Wintemute during a recent seminar held at the University of Trento on July 17, 2018 entitled “Riconoscimento e libera circolazione delle famiglie same-sex nella giuris prudenza della Corte Europea per i Diritti Umani e della Corte di Giustizia” (“Legal recognition and free movement of same-sex families in the case law of the European Court of Human Rights and the Court of Justice”).  ECtHR 24 June 2010, Appl. no. 30141/04 (Schalk and Kopf v. Austria).  The issue of deference is clearly much more complex. The ECtHR deference to the national authority is variable and depends upon the application of the margin of appreciation doctrine. It differs from the general discretion left to the contracting parties in that it entails supervision of the use of such discretion in the sense that the court will police its use and avoid interference with the human rights enshrined in the Convention. As a consequence, the doctrine is no synonym with non-justiciability. The doctrine itself is malleable in the sense that the margin can be narrow or wide depending on several conditions. A wide margin is warranted mainly because there is no “European consensus” on the measure/principle, but the application of the doctrine has not been consistent so far.  The Court likely refused to answer questions 3 and 4 since, pursuant to Article 3, the entrance of the family member under Article 3 shall be merely “facilitated” by the host state (in the sense that the host state has to conduct a thorough investigation and explain why it intends to refuse/grant entrance.) By contrast, if that person is a “spouse,” his/her entrance is guaranteed under EU law. Therefore, upon answering in the affirmative the question on whether Coman’s partner was a spouse, the Court had little reason to answer the question of whether he constituted a family member for purposes of Article 3.  Case C-673/16, Coman v. Inspectoratul General, 2018 EUR-Lex CELEX LEXIS 62016CA0673 (June 5, 2018) at par. 59.