European Court of Justice Says “I Do” to Expanding the Acquis Communautaire on Free Movement Rights to Include Same-Sex Marriage
Written By: Tendai Mukau
On June 5, 2018, the Court of Justice of the European Union [hereinafter “CJEU”] confronted a question which often arises under European Union law: What happens when European Union (EU) law intersects with potentially conflicting Member State law? If an ambiguous key term in an EU harmonization directive is interpreted differently under the domestic law of various Member States, how shall the term be defined under EU law? These are essentially the questions the CJEU endeavored to answer in the case Coman v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne. In this case, the court was essentially tasked with resolving the definition of “spouse” for the purposes of determining whether or not same-sex couples are covered under the Citizens’ Rights Directive, a key provision of EU law, in the face of widely divergent Member State law on the matter. But because the facts of the case went beyond the Citizens’ Rights Directive, the piece of EU legislation in which “spouse” was determined to be gender- neutral, the case involved a rather complicated interrelationship between the Citizens’ Rights Directive and Article 21 of the Treaty of the Functioning of the European Union. In establishing this relationship, the Court drew upon its own body of case law, as well as regional human rights law, that of the European Court of Human Rights interpreting the European Convention on Human Rights.