A battle in which the stakes ride high
 

Suppose you, a Union citizen, legally married your non-EU partner in an EU Member State. Subsequently you decide to move to another EU Member State to take up an exciting employment opportunity. When registering with the immigration authorities, however, you are told that your marriage will not be recognised. As a consequence, your spouse is denied a right of residence. As you see your dream collapse around, you ask yourself the following question: what is the point having the right to move freely in the EU if you cannot bring your family?

In the case of Coman, the Court of Justice is faced with the question whether mr. Hamilton, the same-sex US national partner of mr. Coman, a Romanian national, can be denied the status of ‘spouse’ by Romania despite a legal marriage concluded in Belgium, with the result that the former cannot benefit from a right to work and reside in Romania.

Advocate-General Wathelet in his Opinion in the case is clear. Under the relevant legislation, Directive 2004/38 (applied here by analogy due to a peculiarity of EU law), Union citizens have the right to be accompanied by their ‘spouse’ when exercising their mobility rights. This term was deliberately chosen to be neutral and does not intrinsically refer to heterosexual couples only.

Taking due regard to the evolving context in which EU law operates, Wathelet eventually finds that the combination of the need to protect and respect family life and the principle of non-discrimination on grounds of sexual orientation requires the interpretation that ‘spouse’, for the purpose of EU free movement law, includes same-sex partners whose marriage has been concluded in accordance with the laws of a Member State of the EU. It follows that mr. Hamilton must thus be recognised as a ‘spouse’ of mr. Coman by Romania.

One can only agree with this conclusion. There are indeed a plethora of human rights-related arguments that could be made: from the right to family life, to non-discrimination on grounds of sexual orientation to simply invoking the right to human dignity to argue that a society must recognised and respect deep relationships formed by consenting adults. However, the outcome of the Court of Justice is perhaps of significance beyond even this.

We have seen that the Commission has finally been willing to intervene and defend the Rechtsstaat against the machinations of the Polish government. We have seen that the EU negotiation team has given no ground on the matter of protecting Union citizen’s rights in the Brexit negotiations. The Court of Justice of the EU now has the duty to show that the EU is able to take a stand on controversial issues without there being a clear consensus among the Member States. To show that the EU treats, within its legal framework, with equal concern and with equal respect the legal bonds formed between two human beings, irrespective of their gender.

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