Assessing the ECJ judgment in coman : ITS LIMITS & POTENTIAL

1. Assessing the ECJ judgment in coman: ITS LIMITS & POTENTIAL Presented at the event organised by the EP Intergroup on LGBTI Rights: ‘Lunch Seminar with Experts - Freedom of Movement for Rainbow Families: What’s Next?’ Prof. Alina Tryfonidou, University of Reading

2. Same-sex marriage: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden, UK (excl. Northern Ireland) • Constitutional ban on same-sex marriage: Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia • EU MSs which do not provide any form of legal recognition to same-sex relationships: Bulgaria, Latvia, Lithuania, Poland, Romania, Slovakia MARRIAGE EQUALITY IN THE EU Family law = Member State competence Each EU Member State free to decide if it will open marriage to same-sex couples Prof. Alina Tryfonidou, University of Reading

3. FREE MOVEMENT RIGHTS IN THE EU • Art. 21 TFEU: Member State nationals (aka ‘Union citizens’) have the right to move and reside freely within the territory of the Member States • MS A MS B • MS A MS B MS A (‘returnees’) Prof. Alina Tryfonidou, University of Reading

4. EU FAMILY REUNIFICATION RIGHTS But what happens to the family members of Union citizens who move between MSs? • Directive 2004/38 grants family reunification rights to Union citizens who exercise their right to free movement: • their family members can move with them to the host MS • their family members acquire the right to reside with them in the host MS • their family members acquire a number of other rights (as family members) in the host MS NB the nationality of the family member does not matter! • So, who is a ‘family member’? ‘the spouse’ (Art. 2(2)(a) Dir. 2004/38) (plus 3 other categories) Prof. Alina Tryfonidou, University of Reading

5. DOES THE TERM ‘SPOUSE’ INCLUDE THE SAME-SEX SPOUSE OF AN EU CITIZEN WHO MOVES BETWEEN EU mEMBER STATES? Prof. Alina Tryfonidou, University of Reading

6. cASE c-673/16, Coman and hAMILTON v. inspectoratul general pentru imigrari, ministerul afacerilor interne (2018) Prof. Alina Tryfonidou, University of Reading

7. Ecj jUDGMENT (JUNE 2018) The term ‘spouse’ for the purposes of Dir. 2004/38 must be read as including the same-sex spouse of a Union citizen and thus the spouse is entitled to the right to reside in the territory of the host MS Prof. Alina Tryfonidou, University of Reading

8. Ecj judgment • Person’s (marital) status = a matter that falls within MS competence & thus MSs are free to decide whether or not to allow marriage for persons of the same sex • Nevertheless, in exercising that competence Member States must comply with EU law • Obstacle to free movement: The refusal by the authorities of a Member State to recognise, for the sole purpose of granting a derived right of residence to a third-country national, the marriage of that national to a Union citizen of the same sex, concluded, during the period of their genuine residence in another Member State, in accordance with the law of that State, may interfere with the exercise of the right conferred on that citizen by Article 21(1) TFEU to move and reside freely in the territory of the Member States. • Justifications: Possible grounds: public policy & national identity (Art. 4(2) TEU): An obligation to recognise same-sex marriages concluded in another Member State for the sole purpose of granting a derived right of residence to a TCN does not undermine the national identity or pose a threat to the public policy of the MS concerned as it does not require that MS to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another MS in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law. • Also, measures which amount to obstacles to free movement can only be justified if they are consistent with the fundamental rights guaranteed by the Charter • ECJ then mentioned the right to respect for private and family life and merely noted that ‘it is apparent from the case-law of the European Court of Human Rights that the relationship of a homosexual 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’. Prof. Alina Tryfonidou, University of Reading

9. LIMITATIONS • Does the principle only apply to (same-sex) marriages concluded in an EU Member State? • Contrast with previous C-127/09 Metockcase (involving opposite-sex spouses) where the ECJ noted that ‘neither Article 3(1) nor any other provision of Directive 2004/38 contains requirements as to the place where the marriage of the Union citizen and the national of a non-member country is solemnised’. • Residence in MS from which the Union citizen moves must have been genuine (interpreted elsewhere as meaning that Union citizen has resided in host State for at least 3 months): prevents ‘marriage tourism’. • Facts involved a couple that wished to settle in the host MS – it doesn’t cover same-sex spouses that move as tourists. • Principle only applies to married same-sex couples comprised of at least one EU citizen (i.e. doesn’t apply to couples comprised of two TCNs (Dir. 2003/86)). • Principle does not apply in purely internal situations (e.g. if Mr Coman had not lived/worked in Belgium). Prof. Alina Tryfonidou, University of Reading

10. IMPORTANCE & POTENTIAL • High level of legal certainty and transparency • The requirement imposed by this case also applies to MSs which have a constitutional ban on same-sex marriage (supremacy of EU law). • For the purposes of EU law married same-sex couples are viewed as equal with married opposite-sex couples – ‘spouse’ includes them both (symbolic significance). • Unlike in other cases involving equally delicate matters, the ECJ did not leave the justification assessment to be conducted by the referring court (ECJ wanted – in effect – to decide the case itself!). • Ruling has potential to create the need for same-sex marriages to be recognised in a broader range of circumstances (i.e. not only for family reunification) and even in situations which do not fall within the scope of EU law (i.e. to avoid reverse discrimination). Prof. Alina Tryfonidou, University of Reading

11. THANK YOU! a.tryfonidou@reading.ac.uk Prof. Alina Tryfonidou, University of Reading