Awaiting The Ecj Judgment Inward Coman: Towards The Cross-Border Legal Recognition Of Same-Sex Marriages Inward The Eu?

Dr Alina Tryfonidou, Associate Professor inwards European Union Law, University of Reading

Photo: Mr Adrian Coman (right) amongst his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews post inwards this blog, Obergefell v. Hodges is the illustration that seat the U.S.A. ahead of the European Union amongst regards to the number of the legal recognition of same-sex relationships, as well as has stripped the latter of its seat every bit a pioneer inwards the champaign of LGBT rights protection. However, is Coman at nowadays the EU’s chance non exactly to catch-up amongst the U.S.A. but, also, to re-acquire its seat every bit pioneer inwards the protection of LGB rights, since European Union police clitoris already provides protection to LGB persons from discrimination on the dry ground of sexual orientation inwards the job field, something which is currently lacking at federal score inwards the US?

Coman is only close the cross-border legal recognition of same-sex relationships and, inwards particular, close the cross-border recognition of same-sex marriages. Accordingly, the Court is non asked to dominion on whether the European Union – every bit the U.S.A. – tin give notice require Member States to opened upwards union to same-sex couples in their ain territory. After all, it is clear that fifty-fifty if it was asked to dominion on this, its hands would last tied since – every bit it confirmed non long agone inwards cases involving sexual orientation discrimination (see, for instance, Römer as well as Hay) – ‘as European Union police clitoris stands at present, legislation on the marital status of persons falls inside the competence of the Member States’. This agency that whether same-sex couples should last allowed to conjoin inwards a Member State, is a affair exclusively left to last decided past times the said Member State. Refusing to permit same-sex couples to conjoin does, of course, violate a number of human rights, nevertheless because the number of determining the marital status of persons falls inside the exclusive competence of the Member States and because the way that each Member State decides to regulate this affair has non – as well as then far – interfered amongst the practise of rights stemming from European Union police clitoris and/or amongst the execution of whatsoever of the EU’s policies, the number falls exterior the remit of the Court.

The question, therefore, is whether the Court inwards Coman should dominion that the term ‘spouse’ inwards Directive 2004/38 must last read to include the same-sex husband of a Union citizen and, thus, to effectively require all Member States (even those that receive got non opened union to same-sex couples inwards their territory) to acknowledge inside their territory the same-sex husband of Union citizens who displace betwixt Member States.

In my thought the answer to this inquiry is ‘yes’, as well as this is for the next reasons.

First, if the ECJ rules that the term ‘spouse’ does non include same-sex spouses, this volition amount – inwards number – to granting a license to the Member States to trammel the costless displace rights of LGB Union citizens who are inwards a same-sex marriage. It is difficult to believe that a Union citizen who is happily married inwards a Member State would willingly displace to some other Member State where his/her same-sex husband would non last allowed to accompany or bring together him/her; or, assuming that the husband could bring together him/her inwards the host State on some other ground (i.e. non every bit his/her spouse), it would last highly unlikely that (s)he would last willing to displace to a Member State where the union would non last recognised and, thus, where his/her husband as well as him/her would non last treated every bit a distich for the purposes of taxation, social security, belongings law, inheritance as well as and then on, amongst the obvious disadvantages that would ensue from this.

In fact, the electrical flow lack of clarity that persists amongst regards to the usual recognition of same-sex marriages inwards European Union Member States as well as the consequent inconvenience that emerges every bit a final result of this incertitude is, inwards itself, an obstruction to costless movement: beingness unsure every bit to whether your same-sex husband may last able to bring together you lot inwards some other Member State and/or last considered every bit your husband at that spot is highly probable to deter your practise of costless movement. The ECJ cannot translate a provision of European Union police clitoris (namely, Article 2(2)(a) of Directive 2004/38) inwards a way which permits Member States to breach other provisions of European Union police clitoris (namely, the European Union costless displace provisions). H5N1 stair out which impedes the practise of costless displace rights cannot last justified if it violates key human rights protected nether European Union police clitoris (see, for instance, Carpenter, para. 40). Hence, a restriction on costless displace which emerges every bit a final result of the failure of a Member State to recognise a same-sex marriage, cannot last justified since, every bit volition last seen below, it breaches a number of key human rights protected nether European Union law.

Second, the ECJ – every bit i of the European Union institutions – is saltation past times the EUCFR (see Art. 51(1) EUCFR), inwards interpreting European Union police clitoris provisions (including Article 2(2)(a) of Directive 2004/38) it must ensure that it does non breach the prohibition of discrimination on the dry ground of sexual orientation, set downwards inwards Article 21 EUCFR. An interpretation of the term ‘spouse’ which excludes from it same-sex spouses is, clearly, directly discriminatory on the dry ground of sexual orientation as well as is, thus, opposite to Article 21 of the Charter. Furthermore, the 2004 Directive itself provides inwards its Recital 31 that inwards accordance amongst the prohibition of discrimination contained inwards the Charter (in Article 21), Member States must implement it without discrimination betwixt its beneficiaries on, inter alia, the dry ground of sexual orientation. Accordingly, the Directive itself appears to last requiring an interpretation of its provisions – including of the term ‘spouse’ – which does non give rising to discrimination against same-sex couples.

A tertiary as well as related argue is that next (as required past times Article 52(3) EUCFR) the ECtHR’s recent judgment inwards Pajić v Croatia (see the comments past times Hodson here) which was a illustration close the menage unit of measurement reunification rights of an single same-sex couple, the refusal to recognise same-sex marriages validly recognised inwards some other Member State and the consequent refusal to grant menage unit of measurement reunification rights to same-sex married couples when they displace betwixt Member States – tin give notice amount to a breach of Article vii EUCFR (the correct to private as well as menage unit of measurement life) when read together amongst Article twenty EUCFR which states that ‘Everyone is equal earlier the law’, given that same-sex married couples are treated differently, nether the law, from opposite-sex married couples who, nether European Union law, bask automatic menage unit of measurement reunification rights when they displace to some other Member State. Although – every bit confirmed inwards Pajić (para. 80) – the correct to menage unit of measurement life (as protected nether Article 8 ECHR) does non give the correct to a menage unit of measurement fellow member to teach into or to settle inwards a detail province for menage unit of measurement reunification purposes, States must practise their ‘immigration policies inwards a fashion which is compatible amongst a unusual national’s human rights, inwards detail the correct to honour for his or her private or menage unit of measurement life as well as the correct non to last champaign of written report to discrimination’. Hence, although Article vii EUCFR cannot, if interpreted inwards the same fashion every bit Article 8 ECHR, last relied on to require a Member State to acknowledge inside its territory the (opposite-sex or same-sex) husband of a Union citizen, when that provision is read together amongst Article twenty EUCFR, it requires same-sex spouses to last admitted to the territory of the host State nether the same weather that are imposed on opposite-sex spouses (i.e. automatically).

Fourth – as well as drawing inspiration from the U.S.A. Supreme Court’s judgment inwards the Obergefell v. Hodges illustration – the refusal of the ECJ to consider same-sex marriages every bit valid marriages for the purposes of Directive 2004/38, is liable to amount to a breach of some other human correct protected nether the European Union Charter of Fundamental Rights, namely, the correct to human dignity (Article 1 EUCFR). The declaration goes every bit follows: forming intimate relationships amongst other individuals, choosing to formalise these relationships as well as consequently attaching to them a legal status is an practise of personal autonomy, which is an facial expression of the dignity of every human being. All human beings are equal inwards dignity. By prohibiting discrimination on the dry ground of sexual orientation, the European Union has accepted the equal worth of all individuals irrespective of their sexual orientation, and, amongst it, the equal moral worth of opposite-sex as well as same-sex relationships. When the European Union institutions and/or the Member States reject to give number to the choices of individuals every bit regards their same-sex relationships as well as the legal status attached to them, they process such relationships differently from opposite-sex relationships as well as they seem to last considering the human relationship choices of LGB individuals who are inwards a same-sex human relationship every bit inferior to opposite-sex relationships and, hence, every bit non having the same moral worth every bit the latter. Treating LGB Union citizens every bit second-class citizens past times failing to recognise as well as honour their choices inwards forming intimate relationships as well as formalising them can, therefore, amount to a violation of their correct to human dignity.

Finally – next ECtHR case-law (see, for instance, Wagner) – past times interpreting Directive 2004/38 inwards a way which refuses to recognise a menage unit of measurement status (i.e. that of a ‘spouse’) the ECJ may last acting inwards a way which violates the correct to menage unit of measurement life, every bit this is protected nether Article vii EUCFR. In addition, past times allowing Member States to relegate same-sex spouses to i of the other categories of menage unit of measurement members set downwards on the listing provided inwards Directive 2004/38 as well as to strip them of their legal status – every bit asked inwards some of the questions referred to the ECJ inwards Coman – will, also, last opposite to European Union police clitoris every bit this volition not, only, amount to a breach of Article vii EUCFR but will, every bit good amount to a breach of the European Union costless displace provisions, given that migrant Union citizens volition lose the automatic correct to last accompanied or joined past times their husband inwards the Member State where they move, amongst the obvious deterrent number that this may have.

It is truthful that every bit belatedly every bit 2001, the ECJ attached a heteronormative important to the term ‘marriage’ noting, inwards its judgment inwards the case D as well as Sweden v. Council, that it ‘means a union betwixt 2 persons of the opposite sex’. In subsequent years, however, it was made clear that the European Union does recognise same-sex marriages every bit valid marriages for the purposes of European Union law (for instance, when it comes to the application of the European Union Staff Regulations – come across the W case). Nonetheless, for the reasons stated above, the ECJ should at nowadays bring the additional stair of clearly holding that all Member States (and fifty-fifty those that produce non render legal recognition to same-sex relationships inwards their territory) must recognise same-sex marriages validly contracted inwards some other Member State inwards situations that autumn inside the range of European Union law. H5N1 union validly contracted inwards i Member State – whether betwixt 2 persons of the same- or 2 persons of the opposite-sex – should last considered a ‘marriage’ inwards every other Member State and, thus, the parties to a same-sex union should, also, last considered ‘spouses’ for the purposes of Directive 2004/38. This volition hateful that all European Union Member States volition last required past times European Union police clitoris to recognise same-sex marriages validly entered into inwards some other Member State, as well as this volition last as well as then irrespective of whether they receive got opened union to same-sex couples inwards their ain territory.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau as well as D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements inwards the EU’ EUI Working Paper Law 2016/09 available here

C. Bell as well as N. B. Selanec, ‘Who is a “spouse” nether the Citizens’ Rights Directive? The prospect of usual recognition of same-sex marriages inwards the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex union earlier the courts as well as earlier the people: the floor of a tumultuous twelvemonth for LGBT rights inwards Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage as well as the Role of Transnational Law: Changes inwards the European Landscape’ (2016) 17 High German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell as well as the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 High German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last inwards Translation? How to Interpret “Spouse” inwards the European Union Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law as well as the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195

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