After the celebration: Marriage equality in EU Law post-Coman in eight questions and some further thoughts
| DOI | 10.1177/1023263X20962749 |
| Date | 01 October 2020 |
| Author | Dimitry Vladimirovich Kochenov,Uladzislau Belavusau |
| Published date | 01 October 2020 |
| Subject Matter | Articles |
Article
After the celebration: Marriage
equality in EU Law post-Coman
in eight questions and some
further thoughts
Dimitry Vladimirovich Kochenov* and Uladzislau Belavusau**
Abstract
This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice
clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up
the door for same-sex marriage recognition for immigration purposes all around the EU, thus
destroying the heteronormative misinterpretations of the clear language of the Directive practised
in a handful of Member States. The state of EU law after Coman is still far from perfect, however:
we underline a line of important questions which remain open and which the Court will need to
turn to in the near future to ensure that marriage equality moves beyond mere proclamations in
the whole territory of the Union.
Keywords
Coman, marriage equality, non-discrimination, same-sex marriage, EU law
1. Introduction
The case of Coman,
1
decided on 5 June 2018, is akin to a lemma proven: totally foreseeable in
terms of result, yet an achievement in terms of elegance and depth, leading to the further devel-
opment of equality and non-discrimination law in Europe. It is unsurprising, therefore, that by now
* University of Groningen, Groningen, Netherlands
** T.M.C. Asser Instituut – Universiteit van Amsterdam, The Hague, Netherlands
Corresponding author:
Dimitry Vladimirovich Kochenov, University of Groningen, European and Economic Law, Harmoniegebouw, 26 Oude Kijk
in ‘t Jatstraat, 9712EK Groningen, The Netherlands.
E-mail: d.kochenov@rug.nl
˘ri, EU:C:2018:385.
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(5) 549–572
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20962749
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the judgment has received numerous unanimously praising annotations in leading academic jour-
nals.
2
Our contribution, in contrast, embeds the Coman case within a significantly more critical
plethora of arguments, mapping a wider alternative paradigm for the emancipation of sexuality and
family life – not necessarily only gay and lesbian – via European Union (EU) law. This analysis
will articulate the shortcomings of the judgment along with the distressing ineffectiveness of the
European Commission. Indeed, the inefficiency of EU institutions, especially the Commission, in
taking equality seriously permitted several Member States to ignore the crystal-clear text of the
Citizenship Directive
3
for almost 15 years and nothing has been done to bring them to compliance.
This led to a uniquely heteronormative approach to core rights in the internal market and mirrored
the Commission’s resounding failures in the context of the pre-accession exercise, which brought
Romania – one the perpetrators of this injustice – into the EU.
In this article, while celebrating the preliminary ruling of the Court of Justice of the EU (CJEU)
on otherwise a perfectly clear provision in secondary EU law, we draw attention to and discuss
eight burning issues that arise from the Coman ruling. Besides posing questions regarding the
Commission’s effectiveness as the guardian of the Treaties (1), we interrogate the deficiencies of
single-purpose marriage recognition and question the speed of the eventual spill-overs of such
recognition into other fields outside immigration per se (2). We demonstrate that Coman is a
textbook example of the free-movement paradigm of non-discrimination at work, which is, besides
obviously being accepted in EU law, also deeply questionable from the standpoint of equality and
human rights thinking, since those who do not move within the internal market might also want to
have a family.
4
‘You have not crossed a border we have pledged to make irrelevant’ is not always a
convincing answer from the point of view of non-discrimination (3). Issues of coherence among
different instruments of secondary EU law equally arise (4), just as the issue of ‘genuine resi-
dence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of
life and increasing numbers of people – not all of them heterosexual – living between countries and
homes (5). Numerous questions arise as a result of the natural conflict, which is omnipresent,
between principles of EU law and private international law approaches (6). The CJEU’s language
of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinion, which is
informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal
beds (7). The last issue we raise is the question of ‘what’s next’ for others who are still arbitrarily
persecuted by EU and national law and for those (and how many of them!) that they love. Once the
principle is established that states should not interfere with our sexuality without imperative
2. E.g. J.J. Rijpma, ‘You Gotta Let Love Move’, 15 European Constitutional Law Review (2019), p. 324–339; A. Try-
fonidou, ‘The ECJ Recognises the Right of Same-Sex Spouses to Move Freely between EU Member States: The Coman
Ruling’, 44 European Law Review (2019), p. 663–679; E. Bribosia & I. Rorive, ‘L’arrˆet Coman: quand la Cour de justice
contribue `a la reconnaissance du mariage homosexuel’ 253 Journal de droit europ ´
een (2018) p. 344–347; P. Faraguna,
‘L’amore vince (e l’identit`a nazionale perde?): il caso Coman alla Corte di giustizia’, 3 Quaderni costituzionali (2018),
p. 711–715; H.U. Jessurun d’Oliveira, ‘Het Europese Hof omarmt eindelijk het huwelijk van mensen met hetzelfde
geslacht – Een stap in de goede richting’, 1426 Nederlands juristenblad (2018), p. 2060–2064.
3. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the
Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L 158/
77; corrigenda [2004] OJ L 229/35 and [2005] OJ L 197/34.
4. This issue brings with it the usual questions regarding the justness of the starting points of the EU’s approach to citi-
zenship and rights. Cf. P. Caro de Sousa, ‘Quest for the Holy Grail’, 20 European Law Journal (2014), p. 499; D.
Kochenov, ‘The Oxymoron of ‘‘Market Citizenship’’and the Future of the Union’, in F. Amtenbrink et al. (eds.), The
Internal Market and the Future of European Integration (Cambridge University Press, 2019), p. 217.
550 Maastricht Journal of European and Comparative Law 27(5)
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