Chapter 5 - “For the Sole Purpose of” Approach to Formalized Same-Sex Relationships

Summary

Introduction to the Chapter

Two Examples: The Cases of Coman and Orlandi

A self-restrictive approach emerges from the case-law on cross-border recognition of same-sex marriages examined by the supranational European courts. The current approach can be illustrated by the following examples:

Example 1: The Coman case

In the first example, Mr. Coman and Mr. Hamilton, two men legally married to each other, have been considering settling in Romania. This Member State was the former home and the State of nationality for one of the spouses, Mr. Coman. His spouse, however, was refused a residence permit because they were not recognized as married. Romanian law provided for non-recognition of samesex marriages concluded abroad. In 2018, the European Court of Justice (ECJ) ruled that the concept of the “spouse” shall be understood autonomously under the Directive 2004/38/EC, and may include spouses in formalized same-sex marriages moving across the borders of EU Member States. The ECJ underlined:

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.

The formulations and language of the Court were cautious and limited solely to the discussed situation. More precisely, the situation concerned the right to free movement of EU citizens, who had lawfully married with third country nationals in another EU Member State, and had a “genuine residence” in the State of conclusion of the marriage, which was different to his nationality.

Example 2: The Orlandi case

In the second case, twelve married same-sex spouses requested their marriages to be included into the civil registry in Italy, the State of nationality of most of the spouses. The ECtHR ruled that the refusal of the Italian authorities to do so infringed Article 8 – the right to private and family life – of the European Convention on Human Rights (ECHR).

The ECtHR reasoned that the “States are still free … to restrict access to marriage to different-sex couples”.