In its Coman decision, reached in June 2018, the Court of Justice of the European Union (hereafter CJEU) dealt for the first time, albeit indirectly, with the recognition of same sex marriages in the EU. Although the European legislator and the Luxembourg Court made it clear on several occasions that the internal regulation and definition of the rights of heterosexual and same-sex partners, as family matters more in general, constitute a legal subject that falls exclusively within the competence of Member States, the EU and its legal and judicial bodies have acquired over the past two decades competence over family relationships that have a cross-border dimension. National law may then collide with the EU order when a relationship, a marriage for instance, is created in the jurisdiction of Member State A, and later the parties seek family reunification in Member State B under the so-called ‘Free Movement Directive’.
The above scenario is the one with the CJEU dealt in Coman. Due to persistent differences in the definition of what constitutes the essence of a marriage, and thus of family relations, cross-border family disputes and relations are doomed to endanger the protection of fundamental rights and freedoms. In this sense, the Coman ruling does not constitute an individual decision, but an essential step in the long and troublesome way towards the effective protection of one of the most controversial, and yet cherished, among such freedoms, the right to move and settle freely in the territory of Member States. In Coman, the CJEU granted that same sex-spouses have the right to move across the internal boundaries of the Union, regardless of different national laws on same-sex marriage. By analogy, this right includes the freedom to return to the country of origin, even if such country also does not provide for same-sex marriage.
Understandably, the ruling has been received positively in the legal community. Following the decision, it has been affirmed that the CJEU has significantly raised the bar on LGBT rights. In a blog post titled ‘Love wins in the CJEU: Same Sex Marriages and EU free movement law’, Professor Steve Peers also welcomed the decision “as an equal affirmation of family life” which is especially valuable “[i]n light of the history of pink triangles and Stonewall riots, of chemical castration and teenage suicides, of hatred, bigotry and persecution” that have marked European legal and social history. Various organisations had submitted amicus curiae briefs in the proceedings. Romanița Iordache, Vice President of ACCEPT Association and member of the legal team that participated in the Coman litigation, also celebrated the ruling as:
“…a great victory for same-sex couples across Europe. Starting from this moment onward, all EU norms applying to spouses should also equally to all same-sex families. Romanian authorities now have an obligation to respect the CJEU decision, and ensure residency rights and minimal recognition for all same-sex families in a similar situation.”
In a similar tone, ILGA-Europe foresaw and welcomed the “immensely positive impact the case could have” not only for “couples in Romania, but all over the EU.” The positive reaction by rainbow activists and progressives, I would argue, is only partly justified. Contrary to what has been argued, the Coman decision does not mean that Member States must not discriminate against same-sex families as such. The uncompromising position taken by the Court is that the failure to recognise the free movement rights of a legally sanctioned same-sex marriage celebrated in another Member State constitutes a violation of fundamental rights of EU citizens. The ruling does not carry consequences for all European same-sex partners, but only for those who have married in another European jurisdiction. Only they fall within the protective net of EU free movement law. Those who are not married, or married outside the EU, are excluded.
Seen under this light, it is doubtful whether the decision constitutes a victory for those fighting against all discrimination based on sexual orientation. The Coman ruling runs in the face of the gradual approximation between social and legal fact. Specifically, it ignores the free movement rights of EU citizens who deliberately avoid getting married. In this blog post, I do not wish to discuss the religious, political and moral dimensions of the same-sex marriage debate. Rather, I wish to discuss the huge impact of what may come across as ‘procedural technicalities’ and yet have the potential to result in systematic infringements of free movement rights. I draw to the attention to an odd convergence between conservative and progressive forces that points in the direction of the defence of the marriage institution, rather than respect for family life and personal choices, a trend represented by the renaissance of ‘marital status’.
The Background to the Case and its Wider Social and Political Implications
The proceedings in Coman originated in a request for a preliminary ruling by the Romanian Constitutional Court concerning the interpretation of Article 2, Article 3(1 and 2) and Article 7(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the ‘Free Movement Directive’. The Romanian Court was interested in knowing, first, whether the term ‘spouse’ covered by the Directive in Article 2(2)(a) included same-sex spouses. If the answer was in the negative, the Court asked whether a same-sex spouse could be classified as “any other family member” within the meaning of Article 3(2)(a) or as a “partner with whom the Union citizen has a durable relationship, duly attested” within the meaning of Article 3(2)(b), with a corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if marriages between persons of the same sex are not recognised.
This was the scenario faced by the parties in the proceedings (the legal framework in which the decision was made was discussed in detail and with great clarity in a blog post published in ‘EU Law Analysis’ by Dr Alina Tryfonidou). Adrian Coman, a Romanian national, had married his male partner, Robert Hamilton, who is an American national, in Belgium in 2010. In 2012, Mr Coman unsuccessfully sought to make use of his free movement rights by returning to his home country and by trying to be reunited with Mr Hamilton in Romania. The residence permit was refused on the ground that the couple’s same-sex marriage could not be recognised. The Romanian Constitution is gender-neutral: it defines the family as a freely consented marriage between ‘spouses’ (Article 48), without specifying their sex. However, the Civil Code seemingly left no room for interpretation as it establishes that “Marriage shall be a freely consented union between a man and a woman, concluded under the law.” (Article 259).
Claibourn Hamilton and Adrian Coman. Photo: Vadim Ghirda/AP
Following the refusal to issue the residence permit, the couple brought an action against the local authority, claiming that the rejection of their application amounted to a breach of Mr Coman’s fundamental rights enshrined in the EU Treatises and codified in the Free Movement Directive. Mr Coman alleged that the refusal resulted in the impossibility for him and his partner to make use of his right to move freely within the territory of Member States as provided by Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights. The case eventually reached the Romanian Constitutional Court. The Court decided to refer a question for a preliminary decision to the CJEU which was to rule on whether same-sex spouses fall within the scope of the Free Movement Directive.
Admittedly, the implications of the decision went far beyond the bounds of free movement rights. Traditionally, the family field is a province where nation-states have jealously guarded their legislative and judicial prerogatives, something that, in recent years, the European Council felt the need to stress. The traditional family was constructed from the early 19th century as the basic social institution of national orders. The traditional family was founded everywhere on the monogamous and exclusive, permanent and heterosexual marriage relationship. And yet, each European country regulated it in accordance with local prerogatives. This carried consequences for the way in which family relationships were governed, within domestic borders but also across jurisdictional frontiers. Since the late 18th century, the debate on the regulation of marriage has therefore constituted a powerful weapon for constructing ‘national identities’ as well as for politicising the interference of ‘foreign values’ in national orders.
Unlike the regulation of the economy – which, it is assumed, constitutes a value-neutral social area – the still widely diffused perception is that the family constitutes a unique social field, which makes the core of the argument used to justify the superimposition of municipal rules on nationals and domiciliaries abroad. On the one hand, the fundamental and yet unproven assumption among European lawyers is that family law has unique characteristics; that marriage constitutes a contract sui generis; that such contract, like the family organisation itself, must be regulated in consideration of public interest and national values. On the second one, national legal frameworks have seen more frequent and significant interventions from international and European orders and from supranational courts in the family field, especially through discrimination-based litigation, often with the objective of protecting the right to private and family life, and thus individual choices and personal autonomy.
Seen against this background, we can understand why, as far as cross-border scenarios are concerned, interventions by the European legislator and by the CJEU in this area have been received either with cold feet, or denounced as an outright attack on national sovereignty, by politicians but also by family lawyers. An understanding of this ‘background’ is necessary for understanding the attention elicited by the Coman ruling, as well as its wider implications. In a context characterised by a progressive expansion of the competences of Community Institutions in the family realm, seemingly technical questions have arisen regarding the co-existence of different family regimes in a shared space of freedom, security and justice, questions whose answers can reshape the relation between citizens and public institutions.
Specifically, the question arising in Coman concerned the recognition of a marriage celebrated abroad under foreign law which is not provided for in the internal legal order. This question is generally dealt by rules falling within the scope of national ‘Conflict of Laws’ or ‘Private International Law’. Should such relation be recognised under local Private International Law rules or under EU law? Should it be recognised even if in contravention of national substantive law? Should this course of action be chosen even if it would be in a sense discriminatory to all relations that do not fall within the scope of EU law by virtue of being ‘wholly internal’ or because they do not fit the general definition? Although such questions have a mere procedural nature, the answer to them have and will have huge implications for the values and principles of a European society characterised by increasing cultural pluralism and personal mobility.
The Opinion of the Advocate General and the Decision by the CJEU
In his opinion in Coman, Advocate General Wathelet argued that the CJEU should hold that the term spouse under the Citizens’ Rights Directive applies equally to same-sex as well as opposite-sex marriages. Inevitably, given the wider implications of the decision highlighted in the previous section and in view of the lack of a universally applicable notion of ‘marriage’, the AG’s opinion focused especially on the conceptual definition of marriage within the context of free movement of EU citizens. In his opinion, he argued that the CJEU had an unprecedented opportunity, as “the definition of the concept of ‘spouse’ to be given will necessarily affect not only the very identity of the men and women concerned, and therefore their dignity, but also the personal and social concept that citizens of the Union have of marriage, which may vary from one person to another and from one Member State to another.” (para 2).
The opinion submitted by the Advocate General resulted from a thorough historical and conceptual analysis of the wording of Directive 2004/38 and, at the same time, of the goals of EU law. The AG recalled that, at the time of the adoption of the Directive, only the Netherlands and Belgium had introduced laws making marriage available to persons of the same sex (para 54). This explains why the Council decided not to push for the European Parliament’s proposed amendment in favour of an explicit formulation of Article 2(2)(a) of Directive 2004/38 as inclusive of same-sex spouses. And yet, the AG specified, the reluctance of European Institutions to opt for an explicit definition should not be read in favour of one interpretation or the other. As the European Commission itself specified, it preferred to “restrict [its] proposal to the concept of spouse as meaning in principle spouse of a different sex, unless there are subsequent developments.” Such developments have no doubt occurred since 2004.
The Advocate General maintained that the open-end text of the Free Movement Directive allowed room for a possible “change in interpretation” of the meaning of the term spouses “in the light of developments in family law in the Member States”. For the AG, the dozen countries that, since 2004, amended legislation to allow for same-sex marriage form part of a general movement that justified a new interpretation (para 58). The conclusion reached is that the term spouse must be interpreted independently of the sexual orientation of the spouses. While Member States should be free to provide (or not) for marriage for persons of the same sex in their domestic legal orders, Member States must recognise the existence of same-sex marriage celebrated under the law of another State with which the spouses have a pre-existing connection. To do otherwise, the AG emphasised, the Directive’s overall objective to facilitate and encourage free movement would be frustrated (para 74). To this, he also added that:
“A definition of the term ‘spouse’ that was limited to heterosexual marriage would inevitably give rise to situations involving discrimination on grounds of sexual orientation.” (para 75).
In its answer to the Romanian Constitutional Court, the CJEU conceded that those matters that relate to personal status fall within the competence of Member States (para 37): “Member States are thus free to decide whether or not to allow marriage for persons of the same sex”. It followed that Romania may or may not allow marriages between same-sex persons in domestic law. When they exercise such competence, however, the Luxembourg Court insisted that Member States must respect EU law and the fundamental freedoms of EU citizens, including the right to move and reside in the Union territory, in conformity with the conditions laid down by the Free Movement Directive (para 38). Agreeing with the Advocate General, for the CJEU, the term ‘spouse’ in the Directive is gender-neutral (para 35). Hence, EU law precludes national authorities from refusing to grant residence rights to EU citizens and their spouses, regardless of their sexual orientation and of the provisions in national civil law (paras 39-40).
The headquarters of the Court of Justice of the European Union in
In its decision, the Court also addressed the objection of Member States who had protested that “public policy” or “national identity” legitimated the lack of admission and residence for same-sex spouses (para 42). On this latter point, the CJEU conceded that the EU must “respect the national identity of the Member States, inherent in their fundamental structures, both political and constitutional” (para 43). However, the Court also reiterated that the “public policy” exception must be interpreted strictly and can only be resorted to “if there is a genuine and sufficiently serious threat to a fundamental interest of society” (para 44). In the present proceedings, the judges did not find that this was the case because recognition of a marriage for the sole purpose of enabling the spouses to exercise the rights they enjoy under EU law “does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex” (para 45). Hence, the Court concluded that:
“an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national does not undermine the national identity or pose a threat to the public policy of the Member State concerned.” (para 46).
Defending the Institution of Marriage: Marriage as Status
As the above references show, the Advocate General and the CJEU relied on semantics and on legal history for framing respectively their opinion and judgement. To strengthen their interpretation of EU law and to defend it against the attack of several Member States and conservative associations, both made use of remarkably similar linguistic formulae and argumentative devices. Other than referring to the “status of family member” (paras 35 and 36), the Court dismissed the critical observations submitted by Governments in defence of Romania by referring to urgent need to recognise the cross-border reality of the institution of same-sex marriage. EU law does not require States to modify the “nature of that institution” as a union between a man and a woman, the CJEU pointed out (para 42). However, it maintained that they must recognise the status which follows from the institution of marriage between persons of the same sex (para 45). The Court went further and held that the term ‘spouse’ is to be understood as “a person joined to another person by the bonds of marriage” (para 34).
Lawyers campaigning for Marriage Equality
The variable concept of marriage, and the recurrent references to ‘institution’, ‘status’ ‘bond’, I would argue, constitute the pivotal elements of the Coman decision and the expansive reinterpretation of ‘spouse’ in free movement law. Marriage, the AG and the Court suggest, moves historically and geographically across a spectrum, and thus nothing precludes the redefinition of the word ‘spouse’. This spectrum, however, has fixed elements, such as the notion of ‘status’, the idea that marriage is a fundamental ‘institution’ of society that creates a permanent bond. In his opinion, Advocate-General Wathelet thus argued that Member States of the EU are free to regulate ‘matters of status’ in accordance with national law and may even ban same-sex marriage in the internal order, but they cannot refuse to recognise the ‘marital status’ of those who have contracted a marriage in a foreign jurisdiction (paras 36-39).
Referring to a popular formula in many recent studies on the Europeanisation of private international law, the Advocate General argued that Member States must ensure the “portability of personal status” across the internal borders of the Union. The reference to ‘marital status’ may surprise those who are not familiar with recent decisions of supranational tribunals in international family litigation. Continuity of personal status has become the preferred entry point for solving legal challenges which may arise from freedom of movement in cross-border family relations and, some have argued, the main objective of free movement law. In a context where EU citizens frequently form family ties in accordance with laws different from their own, the ‘imperative of recognition’ means that, once a status is created in a foreign jurisdiction, it “will never be open to challenge by applying a different law.”
This may come across as a positive and progressive development, ensuring the protection of the status and identity of individuals whose relationships would otherwise not be recognised under domestic law because of a different understanding of what constitutes a family. And yet against a background characterised by what the specialised literature almost unanimously regards as the unequivocal signs of the process of ‘contractualisation’ and ‘liberalisation’ of European family law, one cannot fail to notice that references to the “institution of marriage”, to the “bonds of marriage”, to “personal and family status” may come across a paradoxical if not anachronistic phenomenon. Status became especially associated with family regulation when British lawyer and historian Henry Maine used it to distinguish modern societies from primitive societies by claiming that, in family relations, traditional values and not contractual autonomy, permanent bonds and not temporary preferences, are supreme.
‘Family status’, ‘institution’, ‘bonds’ thus conjure up images which seems hardly reconcilable or entirely incompatible with the personal and spatial freedoms enjoyed by European citizens in the 21st century. Has their meaning, like that of marriage, also changed? Is the renaissance of such ideas incompatible with the alleged ‘privatisation’ of family law? What does their employment in cross-border disputes suggest? Compared with the permanent status forced upon individuals by national laws in the 19th and 20th centuries, status has lost some of its normative and conceptual content. Status was used to define personal rights in accordance with national law. Status could not be undone. It was established by one’s personal law regardless of individual preferences. In the 21st century, status results from decisions that individuals make in accordance with virtually any law they come in contact with. Status can be undone.
It is thus evident that status, like marriage, is going through a redefinition. But its employment in cross-border family disputes ought not be dismissed as mere coincidence. What the Coman decision suggests is that, in our age, continuation of status in space is replacing continuation of status in time. This does not mean that the ‘bond’ of marriage is any less strong. If the classical conception of marriage as a permanent union was used for making it impossible for individuals to end their relationships, thus symbolising the permanent link between individuals, families and the nation, the present redefinition suggests that cross-border continuity of status constitutes an essential element of the constitution of a European post-national space of freedom, security and justice where individuals can move freely, together with their individual identity and values, regardless of pre-existing national bonds. The reconceptualization of marriage and its lasting political value, indicates a profound redefinition of the way in which individuals who inhabit the transnational environment perceive themselves, their relationship with public institutions and their membership in civil and political communities.
Registered Partners and Informal Cohabitees in Free Movement Law
As I have argued in my doctoral thesis, this shift to symbolism is an important element of the contemporary transformation of the law governing cross-border family relations. The renaissance and redefinition of marital status in free movement law, evident in the Coman decision, is strongly suggestive of this trend. Accordingly, the legal scholarship seems to be converging on the notion that marriage relations must be recognised as the source of a unique status and that it is the failure to recognise this ‘marital status’ that would violate fundamental rights of mobile EU citizens. But what about relationships involving EU citizens which are not deemed to create such status? Would they be also protected by free movement law? Coman shows that the current transformation does not remove all jurisdictional boundaries. It creates new ones for relationships that are created outside the EU and do not fit the new concept.
Although Coman offered an opportunity to clarify important aspects of EU free movement law, which would have strengthened free movement rights and would have corroborated the claim that the decision constitutes an equal affirmation of family life and a great victory for all same-sex families in a similar situation, the Court left several questions unanswered, starting from the consequential one relating to the place of celebration. Does EU law only cover spouses whose same sex marriage has been celebrated in the territory of another Member State? In his opinion, Advocate-General Wathelet had argued in favour of recognising residence rights wherever the marriage was celebrated. The answer of the Court, which would appear to be in contradiction with Metock (see para 98), seems to be in the negative (paras 33, 35 and 36). This apparently technical difference means that only marriages celebrated in a Member State of the European Union would automatically fall within the scope of the Free Movement Directive. Hence, only spouses of ‘European’ marriages fall within the protective net of EU law.
However, it is with respect to registered partners and informal cohabitees that the decision reveals the full scope of the limits of free movement legislation. As it has been argued in a more balanced commentary on the judgement by Manon Beury on the Strasbourg Observers, the Coman ruling only applies to spouses, that is to marriage, and not to registered partnerships. Registered partners continue to face systematic discrimination and a subsequent legal limbo as Article 2(2)(b) of the Free Movement Directive explicitly provides that they are entitled to a derived right of residency only if “the host Member State treats registered partnerships as equivalent to marriage.” What is more, the flip side of the emphasis on the cross-border continuity of status means that informal same-sex cohabitants are entirely left out of the expansive reading provided by the CJEU of the Free Movement Directive in Coman.
Map showing the current diversity of provisions in national law. In dark blue, countries recognising same-sex marriage. In light blue, countries providing for registered partnerships. In countries in red, a constitutional ban against same-sex marriage is in place. Source: wikipedia.
The strong emphasis placed on marital status is in fact inconsistent with the repeated solicitation by Advocate Generals that the Directive ought to be read “in light of present day circumstances” and “taking the ‘modern reality’ of the Union into account.” Referring to his predecessors, the AG in Coman stressed that the law “cannot cut itself off from society as it actually is, and must not fail to adjust to it as quickly as possible. Otherwise it would run the risk of imposing outdated views and taking on a static role” and that “if no account were taken of [social developments] developments, the relevant rules of law would risk losing their effectiveness” (para 56). Contemporary social reality and legal developments at national level tell us that marriage is merely one of the many formats in which partners decide to live together and form a family. The content as well as the language of the decision are as surprising as the failure by the Court to engage with the question if Member States have a corresponding obligation to facilitate entry and residence for same-sex partners and informal cohabitants.
The free movement directive aimed at turning into reality Article 45 of the Charter which establishes that every citizen of the Union has the right to move and reside freely within the territory of the Member States. As Advocate General Wathelet himself recognised, the overall objective of the Directive is to facilitate and encourage free movement. In itself, the Coman decision bears witness to the sociological reality that, for free movement rights to be effective, the Directive rightfully affords Union citizens the right to bring along their closest family members, even when such family members are not themselves Union citizens. However, the ruling fails to consider the increasing number of non-marital unions in the EU. More has to be done if all European citizens, regardless of their sexual orientation, but also of their preference for or against marriage, are to be encouraged to make use of their basic freedoms and rights.
The long-awaited extension of free movement rights on same-sex married couples has been heralded by scholars advocating marriage equality as pathbreaking, a milestone in the process of greater family inclusiveness. The extension of rights conferred by EU law to European citizens and their family members who did not fall within the exclusive heterosexual model upheld and privileged by the domestic law of several Member States is to be welcomed. However, the question arises if access to rights being made conditional subscribing to the marriage institution is what gay and lesbian liberationist movements campaigning against assimilationist practices and laws have been fighting against for so long. In his commentary, Professor Peers raised an important point when he argued that “[t]here’s a case to be made for reassuring – and eventually persuading – the opponents of equal marriage, rather than lecturing and overruling them”. Perhaps we should read the decision in this sense.
From a historical perspective, references to the ‘institution of marriage’, to the ‘bonds of marriage’, to ‘personal and family status’ indicate what may come across a paradoxical phenomenon. The Coman judgment can be safely placed within the body of decisions by supranational courts that are contributing to rewrite European family law in a liberal sense. However, given the references to concepts that echo the ideas popularised by Maine, by von Savigny and other 19th century scholars, it also raises crucial questions regarding the values and norms that will stand as the foundation of European family law. The language used by the court begs the question if the decision is about expanding the rights and freedoms afforded by EU law, protecting the institution of marriage or, perhaps, appeasing conservative voices.
After Coman, EU citizens who exercise free movement and, by analogy, those returning to their countries of origin, have a right to be reunited with their married partners, whatever their sexual orientation. This is a welcome development. LGBT movements and organisations have rightfully rejoiced at this legal change and at its symbolic meaning. At the same time, this right and freedom does not extend as far as unmarried same-sex partners and cohabitees. The lack of protection currently granted by EU law to same-sex partners who, for ideological or practical reasons, are unwilling to get married, combined with the Court’s strong rhetoric about the status and institution of marriage not only that the decision is narrower in scope than many have assumed, but also may be more conservative than it comes across at first sight.
 The Council observed in one Report from the early 2000s that family law is “very heavily influenced by the culture and tradition of national (or even religious) legal systems, which could create a number of
difficulties in the context of harmonisation.” Council Report on the need to approximate Member States’ legislation in civil matters of 16 November 2001, 13017/01 JUSTCIV 129, p. 114.
 See Amended Proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2003) 199 final, p. 11). Emphasis added.
 Ibid. para 3(1)
 For instance, in Garcia Avello, C-148/02.
 In the EU, the issue of portability of status is often related to registration of same-sex marriages and partnerships. It is not infrequent to find studies on the challenges and opportunities of cross-border
recognition of same-sex marriages which hinge entirely on the question whether “a refusal by a [Member] State to acknowledge the marriage or partnership status of a same-sex couple [is or not] compatible with EU law or human rights?”. Stuart M. Davis, Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU, Thesis, University of Reading (2015), p. 37. Emphasis added.