Marriage between persons of the same sex is prohibited under article 277(1), (2) and (4) of the Romanian Civil Code. Relu Adrian Coman – a Romanian – cohabited with Robert Clabourn Hamilton – an American – for four years in the USA. In 2010, the two men married in Brussels where Coman worked in the European Parliament. Relying on the Citizens’ Directive (2004/38/EC), in late 2012 an application had been made for the necessary documents to be issued so as to enable Coman to work and reside permanently in Romania with his spouse. Romania’s General Inspectorate for Immigration refused to issue the requested documentation on the ground that extending a US national’s temporary residence for the purposes of family reunion was not a possibility. It was not possible to classify Hamilton as the “spouse” of an EU citizen because of Romania’s refusal to recognise same-sex marriage. The Constitutional Court of Romania referred to the CJEU the question whether Hamilton, as the spouse of an EU citizen having exercised his freedom of movement, must be granted a right of permanent residence in Romania. It is the first opportunity for the court to rule whether within the meaning of the directive, the concept of “spouse” applies in the context of a marriage between two men. In answering this “delicate” question, taking an expansionist view of EU sexual citizenship, AG Wathelet interpreted “spouse” to include same sex spouse.
The directive uses the word “spouse” on numerous occasions, especially in article 2(2)(a), but the term is left undefined nonetheless. For AG Wathelet, specifically in the limited context of free movement the definition of the concept of “spouse” affects men and women’s identity and dignity. Moreover, it also affects the personal and social concept that EU citizens have of marriage which varies between people and from member state to member state. Member states must not impede an EU citizen’s freedom of residence by refusing to grant his/her third country national same sex spouse a right of permanent residence in their territory. Although member states are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his/her non-EU same sex spouse a right of permanent residence in their territory. The Asociaţia Accept, a Romanian NGO defending and promoting LGBTI rights, is supporting Adrian Coman and Robert Hamilton in their bid to get justice.
AG Melchior Wathelet
Applying Metock (C‑127/08, EU:C:2008:449), non-EU family members of an EU citizen derive a right under the directive to join the EU citizen in the host member state whether the EU citizen has become established there before or after founding a family. The present couple lived together for four years in New York and established a family life. AG Wathelet did not think that their relationship was made ineffective by the fact that they did not live together in Brussels. He said that in a globalised world couples were bound not to live together for periods because of factors such as employment and transport. As already confirmed by ECtHR and CJEU authorities, the upshot is that not living together cannot on its own affect the existence of a proven stable relationship and the existence of a family life.
(i) “Spouse”: An Autonomous Concept
As for whether “spouse” within the meaning of article 2(2)(a), read with articles 7, 9, 21 and 45 of the CFR, applies to a non-EU national of the same sex as the EU citizen to whom he or she is lawfully married in accordance with the law of a member state other than the host member state, AG Wathelet rejected the view of the Romanian, Latvian, Hungarian and Polish Governments that “spouse” falls outside the scope of EU law but must be defined in the light of the law of the host member state. Instead he preferred to give the term an autonomous meaning, which is completely independent from the sex of the person who is married to an EU citizen. Reference is made in article 2(2)(b) to “the conditions laid down in the relevant legislation of the host member state” but notably article 2(2)(a) makes no renvoi to the law of the member states so as to determine the status of “spouse”.
Uniformity in interpreting EU law is important and judgments such as Hummel Holding (C‑617/15, EU:C:2017:390) and Nintendo (C‑24/16 and C‑25/16, EU:C:2017:724) exact that regard must be given to the wording of a provision and also its context and the legislative objective in question. The directive expressly employs that methodology and no reason exists to depart from it in interpreting the term “spouse”.
On the issue of competence and the reach of EU law, two points were important. Firstly, it was clear from judgments given on various subjects, including direct taxation and criminal matters, such as Garcia Avello (C‑148/02, EU:C:2003:539), Schumacker (C‑279/93, EU:C:1995:31) and Calfa (C‑348/96, EU:C:1999:6) that the member states must observe EU law when exercising their competences. AG Wathelet said that cases on the marital status of persons do not derogate from that rule and in Maruko (C‑267/06, EU:C:2008:179) and Parris (C‑443/15, EU:C:2016:897) the CJEU expressly held that when exercising those competences it is necessary to observe the provisions relating to the principle of non-discrimination.
Notably, the crucial question in the main proceedings related to freedom of movement and not to legalisation of same sex marriage. The latter was under Parris a matter for the internal legal order. But applying Iida (C‑40/11, EU:C:2012:691), a situation governed by rules falling a priori within the competence of the member states may have “an intrinsic connection” to an EU citizen’s freedom of movement which prevents non-EU nationals being refused the right of entry and residence in the member state of residence of the EU citizen so as to stop interference with that freedom. On the subject of the constitutions of Bulgaria, Latvia, Lithuania and Poland, AG Wathelet clarified:
39. The fact that marriage – in the sense exclusively of the union of a man and a woman – is enshrined in certain national constitutions cannot alter that approach.
Therefore, member states are free to provide for same sex marriage in their domestic legal system but they must fulfil their obligations under the freedom of movement of EU citizens. In analysing the concept of “spouse” within the meaning of article 2(2)(a), AG Wathelet provided focus to the wording, structure and context of the provision and the objective pursued by the directive. Dealing with the wording and structure, he opined that the directive makes no reference to member state law in order to determine the nature of “spouse”, even though that concept must be interpreted autonomously and uniformly throughout the EU. The structure of article 2(2), together with article 3(2)(b) which adds to the directive’s beneficiaries “the partner with whom the Union citizen has a durable relationship, duly attested”, confirms that the concept of “spouse” refers to that of “marriage”. Leaving aside direct descendants and direct ascendants, “family members” are the spouse and the partner with whom the EU citizen has contracted a registered partnership. In light of observations made in Metock, as regards the benefit conferred by the directive and the irrelevance of the timing and location of the marriage between the EU citizen and the non-EU spouse who seeks to accompany or join the EU citizen, AG Wathelet took the view that:
49. If it is therefore certain that the word “spouse” used in article 2(2)(a) of Directive 2004/38 relates to marriage, it is gender-neutral and independent of the place where the marriage was contracted.
Distinct from “partnerships” the laws on which vary in their personal and material scope, the legal institution of marriage possesses – or can be presumed to possess – “a certain universality” in the rights conferred and the obligations placed on spouses. Moreover, European legislators have conferred the benefit of article 2(2)(b) solely on registered partnerships “equivalent to marriage”. Even though the Council had used “spouse” without much critical evaluation, the directive’s drafting history verifies that the neutrality of the term “spouse” is accompanied by the irrelevance of the sex because the European Parliament wished to add the words “irrespective of sex, according to the relevant national legislation”. But the Council was reluctant to choose a same sex definition because only two member states had authorised same sex marriage and at the time the CJEU had also found that the member states construed marriage to mean a union between two persons of opposite sexes. This led the Commission to narrow its proposal so as to mean spouses of different sexes unless there are subsequent developments.
AG Wathelet thus traced the development of the interpretation of the concept of “spouse”. Owing to the general evolution of the societies of the member states in the last decade in the area of authorisation of same-sex marriage, it was clear to AG Wathelet that D and Sweden v Council (C‑122/99 P and C‑125/99 P, EU:C:2001:304) – whereby “according to the definition generally accepted by the member states, the term marriage means a union between two persons of the opposite sex” – can no longer be followed because of being “outdated”.
Indeed, AG Wahl opined in Haralambidis (C‑270/13, EU:C:2014:1358) that EU law must be interpreted “in the light of present day circumstances” and AG Szpunar in McCarthy and Others (C‑202/13, EU:C:2014:345, see here) and that the “modern reality” of the EU must be taken into account. Adjusting to the times and interpreting EU law dynamically had also been advocated by AG Tesauro in P v S (C‑13/94, EU:C:1995:444). And as the court itself held in Cilfit (283/81, EU:C:1982:335), it is necessary to interpret a provision of EU law in the light of the state of evolution on the date on which the provision concerned is to be applied. A rolling analysis showed that in 2004 only two member states allowed same sex marriage whereas 11 more member states have since amended their legislation to allow it (and Austria will be counted in that list by 1 January 2019 at the latest). All this was a part of a wider worldwide statistically confirmed trend towards recognition of same sex marriage which is unrelated to culture or history and corresponding to a universal recognition of the diversity of families.
As regards the fundamental rights associated with the concept of “spouse”, article 2(2)(a) necessarily interlocks with family life and the protections conferred by article 7 of the CFR which needed to be taken into account in a contextual interpretation, as did the emerging Strasbourg jurisprudence. Over the past decade, in a line of cases stemming from Schalk and Kopf v Austria  ECHR 1996, the ECtHR has found it artificial to hold that unlike a heterosexual couple, a homosexual couple could not have a “family life” for the purposes of article 8 of the ECHR. In Oliari and Others v Italy  ECHR 716, the court confirmed that the ECHR requires states to give homosexual couples legal recognition and legally protect such relationships. Immigration decisions impacting third country nationals can in instances interfere with the right to respect for private and family life provided by article 8, especially when such nationals have strong ties in the host state that are exposed to serious consequences by the measure in question.
Protecting the traditional family may be perceived as a legitimate aim. Conversely, however, cases such as Taddeucci and McCall v Italy  ECHR 604 and Vallianatos and others v Greece  ECHR 1110 clarify that this rationale is incapable of being a particularly convincing and weighty consideration in justifying discrimination on grounds of sexual orientation. Taddeucci and McCall and Pajić v Croatia  ECHR 203 demonstrate that differences in treatment solely on grounds of sexual orientation are unacceptable in the Strasbourg jurisprudence. In the area of family reunification the ECtHR also considers that discrimination on grounds of sexual orientation in order to protect the traditional family cannot be justified.
In Römer (C‑147/08, EU:C:2010:425), AG Jääskinen inclined to a similar view and did not think that the aim of protecting marriage or the family legitimise discrimination on grounds of sexual orientation. No positive effect derives from such discrimination and it was not easy to see what causal relationship could unite that type of discrimination. Thus, confined to the directive’s scope, the meaning of “spouse” in AG Wathelet’s opinion is “necessarily independent of the sex of the persons concerned”.
Such an interpretation optimises the respect for family life guaranteed by article 7 of the CFR while simultaneously enabling the member states to decide with freedom whether to authorise same sex marriage. Treating things otherwise would result in different treatment on the basis of whether married couples are of the same sex or of different sexes given that heterosexual marriage is allowed in every member state. The difference in treatment based on sexual orientation would be unacceptable under the directive and the CFR, which must be interpreted in the light of the ECHR.
Next, the directive’s objective equally supported an interpretation of “spouse” independent of sexual orientation. In addition to Metock, cases such as O and B (C‑456/12, EU:C:2014:135), McCarthy and Others (C‑202/13, EU:C:2014:2450) and Lounes (C‑165/16, EU:C:2017:862, see here and here) have consistently shown that the directive’s purpose is to facilitate the primary and individual right to move and reside freely within EU territory which is conferred directly on EU citizens by article 21(1) TFEU and to strengthen that right. In addition to the objective in recital 1 of the directive, recital 2 adds that free movement is one of the fundamental freedoms of the internal market, which is enshrined in article 45 of the CFR.
As stressed by recital 5 and confirmed by McCarthy and Lounes, to be exercised with freedom and dignity, the free movement rights of all EU citizens must be given to their family members irrespective of nationality. Guaranteed Treaty rights would be seriously obstructed if EU citizens were not allowed to lead a normal family life in the host member state. EU citizens could be discouraged from leaving the home state to establish themselves in another member state for fear of not being able to continue upon return to the home state family life which might have arisen in the host member state as a consequence of marriage or family reunion. Such a approach is to be deprecated applying Metock, O and B, Singh (C‑370/90, EU:C:1992:296), Carpenter (C‑60/00, EU:C:2002:434), Eind (C‑291/05, EU:C:2007:771) and Iida (C‑40/11, EU:C:2012:691). Similarly, the directive’s provisions may not be interpreted restrictively and must not be deprived of their effectiveness and must be construed broadly. As a founding principle of the EU, free movement must be construed broadly and:
74. Consequently, where there is a choice between an interpretation of the term “spouse” that limits the scope of Directive 2004/38 and another that, respecting the wording and the context of the provision being interpreted, facilitates the free movement of a greater number of citizens, the second interpretation must be chosen.
An even more compelling reason required the same interpretation because recital 31 has the alternative objective that member states should implement the directive “without discrimination between the beneficiaries on grounds such as … sexual orientation”. A purely heterosexual interpretation of spouse would inevitably result in discrimination because of sexual orientation. A neutral interpretation of “spouse” interlocks with a high level of legal certainty and transparency because a lawfully married EU citizen will be reassured that his/her spouse will be regarded as such throughout the EU within the framework of article 2(2)(a).
(ii) Automatic Right
On the question whether article 3(1) and article 7(2) of the directive – read in the light of articles 7, 9, 21 and 45 of the CFR – require the host member state to grant an EU citizen’s same-sex spouse the right to reside for more than three months, AG Wathelet said that provided that the EU citizen satisfies the conditions laid down in article 7(1)(a), (b) or (c), the right of the non-EU spouse to accompany or join the EU citizen is “an automatic right.” This analysis is confirmed by article 3(2) and the judgment in Rahman and Others (C‑83/11, EU:C:2012:519) whereby it is clear that family members enjoy a right of entry and residence in the EU national’s host member state whereas the rights of other family members only need to be facilitated.
In the instant case, Robert Hamilton was unable to rely upon the directive’s provisions because they do not confer a derived right of residence on non-EU family members in the home state. Nevertheless, applying the approach in O and B, Lounes and Chavez-Vilchez and Others (C‑133/15, EU:C:2017:354, see here), AG Wathelet thought that Hamilton should in principle be entitled to a derived right of residence on the basis of article 21(1) TFEU and the directive should be applied to him by analogy. The conditions for granting the derived right of residence cannot be stricter than those envisaged by article 7(2) of the directive for persons who have engaged in cross-border activity by utilising free movement.
(iii) “Spouse”: Heterosexuals Only? No
The autonomous concept of spouse is wide reaching and neutral. Reiterating the points above, AG Wathelet found it artificial to consider that a homosexual couple cannot have a family life. He nevertheless went on to address the consequences of classifying a same sex third country national married to an EU citizen as an other family member or a partner with whom the EU citizen has a durable relationship, duly attested within the meaning of article 3(2)(a) or (b) of the directive.
Although clearly possible, such a classification would mean that the non-EU same sex partner falls within a class of persons who member states are not obliged to accord a right of entry and residence and are only obliged to confer a certain advantage. A decision on such persons requires an extensive examination of their personal circumstances and refusal needs justification by reasons.
Rahman allows member states “wide discretion” on selecting factors since the host member state needs to ensure that domestic legislation contains criteria consistent with the normal meaning of the term “facilitate” so as to maintain the effectiveness of article 3(2). Juxtaposing those principles with the context of the present case, AG Wathelet said that:
97. To my mind, however, that discretion must be narrower in the situation described by the referring court.
He concluded that article 8 of the ECHR and article 7 of the CFR impose a positive obligation to offer homosexuals, who are precluded from marriage or registering a partnership by the laws of a member state, the opportunity of having their union recognised in law and protected by the courts. Overall, granting an EU citizen’s spouse a right of residence constitutes recognition and the minimum guarantee that can be given to them.
How strange that in this day and age Romania’s authorities elect to discriminate against the LGBTI community. AG Wathelet’s opinion is a useful reminder that in a fast moving and globalised world traditional views on the family and sexuality are now clearly defunct. Commentary on this case by Asociaţia Accept clarifies that although the Romanian authorities rely on the Romanian Civil Code to justify refusal, the same code also provides that the right to a family – including a same-sex family – needs to be respected in the context of asserting a person’s right to free movement on EU territory.
From a philosophical and theoretical angle, this opinion confirms Uladzislau Belavusau’s argument that: “The mere demands for sexual emancipation have been continuously framed as a matter of European discourse, turning EU citizenship into a viable tool of European federalism and the empowerment of individuals which spreads much further than narrow concerns about the internal market.” Clearly, EU sexual citizenship is a positive thing as it eliminates the backward ideals – which exclude diversity, difference and freedom – of republican citizenship. Leaving all the failures of the EU to one side, perhaps it is not such a bad idea to have a European super state after all.