Background

Adrian Coman is a Romanian. He married his male partner, Claibourn Robert Hamilton – a US citizen – in Belgium in 2010 and the couple currently lives in the US. In 2012, Mr Coman asked the Romanian immigration authorities about obtaining a residence permit for his spouse. He was told that a permit would be refused because the Romanian Civil Code bans the recognition of same-sex marriages performed abroad. However, if Mr Coman’s spouse had been a woman, the marriage would have been recognised automatically and she would have been entitled to a residence permit ipso facto.

The couple sought judicial review, claiming that the refusal of the residence permit because of the failure of the Romanian authorities to recognise same-sex marriages contracted abroad breached Mr Coman’s right to free movement under EU law and constituted discrimination on the ground of sexual orientation, contrary to the EU Charter of Fundamental Rights. The first instance court hearing the case referred a question to the Curtea Constituţională a României about the constitutionality of the relevant provisions of the Civil Code and the Constitutional Court, in turn, sought a preliminary ruling from the CJEU.

The questions referred

The questions put to the CJEU were as follows:

“(1) Does the term ‘spouse’ in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

(2) If the answer [to the first question] is in the affirmative, do Articles 3(1) and 7([2]) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant the right of residence in its territory or for a period of longer than three months to the same-sex spouse of a citizen of the European Union?

(3) If the answer to [the first question] is in the negative, can the same-sex spouse, from a State which is not a Member State of the Union, of the Union citizen to which he or she is lawfully married, in accordance with the law of a Member State other than the host State, be classified as ‘any other family member’ within the meaning of Article 3(2)(a) of Directive 2004/38 or a ‘partner with whom the Union citizen has a durable relationship, duly attested’, within the meaning of Article 3(2)(b) of that directive, with the corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if that State does not recognise marriages between persons of the same sex and provides no alternative form of legal recognition, such as registered partnership?

(4) If the answer to [the third question] is in the affirmative, do Articles 3(2) and 7(2) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, require the host Member State to grant the right of residence in its territory or for a period of longer than three months to the same-sex spouse of a Union citizen?”

The Advocate General’s opinion

In the opinion of Advocate General Wathelet, in Coman and Others [2017 EUECJ-C 673/16:

• “The literal, contextual and teleological interpretations of the term ‘spouse’ used in Article 2(2)(a) of Directive 2004/38 lead to giving it an autonomous definition independent of sexual orientation” [77].

• “The right of a Union citizen to reside for more than three months on the territory of another Member State extends to his or her spouse who is a national of a third country and who accompanies or joins the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions laid down in Article 7(1)(a), (b) or (c) of Directive 2004/38” [82] and it is an automatic right: “Article 3(2) of Directive 2004/38 confirms this” [83].

• Though, in his view, it is not necessary to answer the third and fourth questions, “on the one hand, refusal to grant the application for entry and residence of a third-country national of the same sex as the citizen of the European Union to whom he or she is married in accordance with the law of a Member State, may not be solely or decisively based on his or her sexual orientation, without infringing Articles 7 and 21 of the Charter [98]. On the other hand, the obligation to facilitate the entry and residence of the national of a third State of the same sex as the citizen of the European Union to whom he or she is married is greater, and the discretion narrower, when the Member State does not allow marriage between persons of the same sex and does not afford homosexual couples the possibility of entering into a registered partnership [99: emphasis added].

The proposed answers

AG Wathelet therefore proposed the following answers to the Curtea Constituţională:

“(1) On a proper construction of Article 2(2)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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 term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married.

(2) Article 3(1) and Article 7(2) of Directive 2004/38 must be interpreted as meaning that the spouse of the same sex as a citizen of the Union who accompanies that citizen in the territory of another Member State enjoys in that territory a right of residence of more than three months, provided that the Union citizen concerned satisfies the conditions laid down in Article 7(1)(a), (b) or (c).

Article 21(1) TFEU must be interpreted as meaning that, in a situation in which a citizen of the Union has developed or consolidated a family life with a national of a third State while actually residing in a Member State other than that of which he or she is a national, the provisions of Directive 2004/38 apply by analogy when that citizen of the Union returns, with the family member concerned, to his or her Member State of origin. In that situation, the conditions for the grant of a right of residence for a period of more than three months to the national of a third State, who is the same-sex spouse of a Union citizen, should not in principle be stricter than those laid down in Article 7(2) of Directive 2004/38.

(3) Article 3(2) of Directive 2004/38 must be interpreted to the effect that it can be applied to the situation of a national of a third State, of the same sex as the citizen of the Union to whom he or she is married in accordance with the law of a Member State, whether as ‘[another] family member’ or as the ‘partner with whom the Union citizen has a durable relationship, duly attested’.

(4) Article 3(2) of Directive 2004/38 must be interpreted as meaning that:

– it does not oblige Member States to grant the national of a third State legally married to a Union citizen of the same sex a right of residence on their territory for a period of more than three months;

– Member States must nonetheless ensure that their legislation includes criteria that allow that national to obtain a decision on his or her application for entry and residence that is founded on an extensive examination of his or her personal situation and, in the event of refusal, is supported by reasons;

– although the Member States have broad discretion in selecting those criteria, the latter must be consistent with the normal meaning of the word ‘facilitate’ and must not deprive that provision of its effectiveness; and

– refusal of the application for entry and residence may not at all events be based on the sexual orientation of the person concerned.”

Comment

It should be remembered that the Advocate General’s opinion does not bind the Court. However, its publication has prompted a degree of academic comment to the effect that it is one more step towards the general recognition of a right to same-sex marriage in EU law. But given that the opinion does not bind the Court, I would probably have refrained from noting it at this stage – were it not for the fact that the issue has just been considered in the Inter-American Court of Human Rights [for which, thanks to Howard Friedman].

In an advisory opinion sought by the Republic of Costa Rica – Identidad de género, e igualdad y no discriminación a parejas del mismo sexo OC-24/17 de 24 de Noviembre de 2017 – and published (in Spanish only) on 9 January, the Court replied to Costa Rica’s most important questions about sexuality and the American Convention on Human Rights as follows [my own fairly rough translation]:

• Change of name, change of photograph [adecuación de la imagen] and the rectification of mentions of sex or gender in registers and in identity documents so that they accord with self-perceived gender identity is a right protected by Article 18 (right to name), but also by Articles 3 (right to recognition of legal personality), 7.1 (right to freedom) and 11.2 (right to privacy) of the American Convention. As a consequence of the foregoing, in accordance with the obligation to respect and guarantee rights without discrimination (Articles 1.1 and 24 ) and with the duty to adopt the provisions of domestic law (Article 2 ), States are obliged to recognise, regulate and establish the appropriate procedures for such purposes [116].
• States may establish and decide on the most appropriate procedure – in accordance with the characteristics of each context and its domestic law – for changing the name, changing the photograph and rectifying the reference to sex or gender in  registers and identity documents to be consistent with the self-perceived gender identity, regardless of its jurisdictional or materially administrative nature; but they must comply with the requirements indicated in this opinion, namely: a) they must be focused on the integral adaptation of self-perceived gender identity; b) they must be based solely on the free and informed consent of the applicant without requiring requirements such as medical and/or psychological certifications or others that may be unreasonable; c) they must be confidential and additions, changes, corrections or adjustments to records and identity documents should not reflect changes in accordance with gender identity; d) they must be expedited and, so far as possible, they should aim to be free, and e) they should not require the accreditation of surgical and/or hormonal operations. Given that the Court notes that procedures of a materially administrative or notarial nature are those that best meet and adapt to these requirements, States may provide in parallel an administrative channel for which the person may elect [166].
• The American Convention, by virtue of the right to the protection of private and family life (Article 11.2) and the right to protection of the family (Article 17), protects the family bond that can be derived from a relationship of a couple of the same sex. The Court also considers that all the economic rights that derive from the family bond should be protected in the case of persons of the same sex without any discrimination as against those of heterosexual persons, in accordance with the right to equality and non-discrimination (Articles 1.1 and 24) … [199].
• States must guarantee access to all existing legal systems in order to ensure the protection of all the rights of families formed by same-sex couples, without discrimination as against those formed by heterosexual couples. For this, it may be necessary for States to modify existing law through legislative, judicial or administrative measures in order to extend them to couples formed by persons of the same sex. Those States that have institutional difficulties in adapting their existing law, and which temporarily and in good faith promote these reforms, are under the same duty to guarantee same-sex couples equality and parity of rights without discrimination. [228].

Costa Rica’s Second Vice-President, Ana Helena Chacón, welcomed the Court’s ruling and said that it would be adopted “in its totality”.

AG Wathelet, the Inter-American Court and the recent ECtHR judgments in Oliari v Italy [2015] ECHR 716 and Orlandi & Ors v Italy [2017] ECHR 1153 would suggest that there is a growing international legal consensus that same-sex couples have equal rights with opposite-sex couples and that those rights must be respected: for example, that there must be a mechanism for formal legal recognition of same-sex relationships, even if it is not obligatory to provide for same-sex marriage.

Carry on watching this space…