On the morning of 5 June, the Court of Justice of the European Union (CJEU) issued its decision (press release) in the Coman case, based on preliminary questions that had been referred to it by the Romanian Constitutional Court on the proper interpretation of the EU legislation Directive 2004/38 on freedom of movement and residence for EU citizens.
The Court ruled that where the Directive provides for a right of residence for the “spouse” (including the non-EU citizen spouse) of an EU citizen who is making use of freedom of movement to live in another EU member state, this term must also apply to the same-sex spouse of the EU citizen. If the host member state defines marriage as only being between a man and a woman, EU law is not actually forcing that member state to recognize same-sex marriage in violation of its own legal and constitutional norms. EU law only obliges that member state to recognize that the same-sex spouse of an EU citizen must be allowed to live and work in the host member state. Moreover, if an EU citizen genuinely lives in a host member state with her or his spouse, then returns to his or her own member state, the EU citizen’s home member state must also recognize that the spouse has a right to live and work there.
It is possibly this last aspect of the court’s judgment that is the most interesting, as it shows once more how EU law can be a source of civil rights for EU citizens as against their own member states. This doctrine of EU law developed against the background of member states, especially the Netherlands, attempting to restrict the rights of their own citizens, particularly those from minority backgrounds, to obtain rights of residence for the partner or spouse of their own choice. Citizens of member states with such restrictions soon found that they could make use of the “Europe route” or “U-turn”: genuinely residing in a host member state, where their partner or spouse would get a right of residence as the family member of an EU citizen, then returning to their own member state in order to activate the applicability of EU law, a right that the EU Court confirmed time and time again in the face of member states like the Netherlands trying to interpret this right restrictively.
Today’s judgment from the Court reveals that EU citizenship can be a powerful source of the right to family life for members of all minorities, both ethnic and sexual, who are discriminated against by the laws of their own member states. As noted, the decision does not go all the way toward obliging member states to actually recognize same-sex marriage, but it does provide important immigration benefits. To provide a comparative perspective with another federal constitutional order, the United States, today’s judgment is more comparable with the 2013 decision United States v. Windsor of the Supreme Court of the United States, which obliged the federal government, but not states, to recognize same-sex marriage (including for purposes of immigration), than with the 2015 decision Obergefell v. Hodges that introduced marriage equality in all of the states.
Jeremy Bierbach, attorney at Franssen Advocaten and an expert on European constitutional law, is looking forward to assisting same-sex married couples in which one of the spouses is an EU citizen. If the EU citizen comes from a member state that does not recognize the marriage, the couple can first obtain a right to stay in the Netherlands (for instance) so that they can move back to the EU citizen’s home member state after a period of genuine residence: the non-EU citizen spouse will then obtain a right to stay there.