Today marked a big step in the advancement of the rights of same-sex couples. Following a reference made to the Court of Justice of the European Union (CJEU) by the Romanian Constitutional Court, the CJEU has ruled that “spouses” in Directive 2004/38 include same-sex spouses.
Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.
Mr Coman and Mr Hamilton
Mr Coman, a Romanian national, married his partner Claibourn Robert Hamilton, a US national, in Belgium in 2010. Mr Hamilton then returned to the US.
In 2012, Mr Coman decided to return to live in Romania, and contacted the authorities there to ask whether Mr Hamilton could obtain the right to reside in Romania as his family member. The Romanian authorities refused on the ground that the couple’s marriage could not be recognised in Romania. The Romanian Civil Code bans the recognition of same-sex marriages performed abroad.
The case was challenged up to the Romanian Constitutional Court, which stayed the proceedings and referred four questions to the CJEU. Essentially, the question was whether the term “spouse” in Directive 2004/38 includes the non-EU same-sex spouse of an EU national, such that those same-sex spouses should be afforded the same free movement rights as their different-sex counterparts.
Excluding same-sex spouses would interfere with free movement rights
The CJEU went back to the basic principle that the free movement rights of EU nationals would not be fully effective if EU nationals were deterred from exercising them because of obstacles to their family members accompanying them. If a Member State refused a residence permit to the same-sex spouse of an EU national, that Member State would be interfering with that EU national’s rights to move and reside freely within the territory of the Member States.
To put it simply, if James, a British national, is free to move to Romania to work, but he has to leave his spouse, Oliver, a Nigerian national, behind, James is unlikely to move to Romania.
As the CJEU puts it:
the effect of such a refusal is that such a Union citizen may be denied the possibility of returning to the Member State of which he is a national together with his spouse .
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The CJEU therefore concluded that Member States should, regardless of whether or not they allow same-sex marriages in their own countries, recognise the same-sex marriage of EU nationals for the purpose of granting rights of residence in the EU to their family members. In other words, the Romanian must give Oliver the right to live in Romania with James.
The court was, nevertheless, careful not to upset the political sensitivities of some of the EU Member states. It reiterated that Member states are free to decide whether to allow same-sex marriage; and that the EU respects the national identity of the Member States, inherent in their fundamental structures, both political and constitutional.
The Court also noted that EU free movement rights can be subject to restrictions if those are based on objective public-interest considerations, and are proportionate to a legitimate objective pursued by national law. That said, in this case, it found that
the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and, as indicated in paragraph 37 above, falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law 
Accordingly, 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 
A step towards the recognition of other family relations?
As stressed by the Court, this case does not mean that European Member states must now all allow same-sex marriages in their own jurisdictions. It does mean that European nationals exercising free movement rights will be able to have their same-sex spouses join them anywhere in the EU, including to countries where same-sex marriages are not recognised.
In addition, this case may open doors to other unrecognised family links.
Regular readers may remember that, in the case of SM (Algeria) v Entry Clearance Officer  UKSC 9 (see discussion here), the British Supreme Court had to decide whether an unrecognised adoption could still confer free movement rights. The Supreme Court referred the case to the CJEU for a preliminary ruling. The case of Coman might very well be cited by the CJEU, which might find again that excluding unrecognised adoptees from the Directive would interfere with free movement rights.
More concretely, this case could raise interesting questions regarding the recognition of other types of partnerships. I am thinking in particular of “registered partnerships”, which are included in the Directive “if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State”.
In 2014, in the Cocaj case (C-459/14), the Court was asked to clarify the meaning of the term ‘registered partner’ and in particular whether it included same-sex registered partners, but the reference was subsequently withdrawn, so that the question remained unresolved.
In the UK, it is actually the opposite question that would arise: are registered partnerships entered into by different-sex couples recognised for the purpose of the Directive?
Under UK law, only gay couples can enter into civil partnerships. Schedule 20 of the Civil Partnership Act 2004 lists other registered partnerships which are recognised, but they are only recognised when entered into by gay couples and not by straight couples. Therefore registered partnerships entered into by different-sex couples (for example French PACS) would not be recognised in the UK because it is not in accordance with the conditions laid down in the UK’s legislation.
Arguably, following the case of Coman, this failure to recognise formal lawful partnerships entered into in other EU countries is an interference with free movement rights and the UK should now recognise, at least for the purposes of EU law, registered partnerships entered into by straight couples.
This article was amended on 11 June to remove an erroneous reference to Surinder Singh rights.