The Legal Acrobatics of Fundamental Rights – Coman and Gay Marriage as a Case Study

The Court of Justice rendered yesterday a landmark judgment in the case of Relu Adrian Coman, in which the Court ruled that gay marriage must be recognized in all Member States for the purposes of free movement of persons and the right to legal residence under EU Law. It is a fair decision that confirms a trend in the West in favour of gay rights and equality on the grounds of sexual orientation and identity. When tolerance prevails, the world is a better place. And Europe is a better place today than yesterday thanks to Mr. Coman, his husband, the Romanian Constitutional Court (that had the courage to make the reference to Luxembourg) and the Court of Justice.

This post is not about the substance and specifics of the Coman case, a matter that will be undergone in detail by commentators in the months and years to come. Coman will stand as a leading case in the Court’s fundamental rights case-law and rightly so. Therefore, this post is not about the place of Coman in the Court’s overall citizenship and fundamental rights case-law, but about the audacity of the Court’s legal reasoning. In fact, Coman is a rich recollection of the argumentative tricks and somersaults that the Court can play in order to reach a specific outcome. As a case study on the Court’s legal acrobatics, Coman is an excellent case study.

First, there is the issue of the relationship between primary and secondary law. Coman has been portrayed as a standard free movement of persons case, but in fact it raises a tricky issue that the Advocate General handled with care and eloquence. Mr. Coman is not an outbound free mover, but quite the opposite: he is a Romanian returning back to Romania, and thus he is not an EU citizen in a host Member State. Of course, this is not a new scenario for free movement law and the Court has handled it many times in the past (see Kraus, O and B, Dereci, McCarthy, etc…) but it is (at least to my knowledge) the first time it happens in a context in which the Member State invokes national identity against its own nationals. An awkward situation indeed: my citizens are upending the identity of the nation by means of EU law.

The Court has solved this in the same way that it solved similar situations in the past: relying on the Treaties in the absence of a Directive. Inasmuch Directive 2004/38 does not apply to cases of inbound free-movers, Article 21 TFEU is the relevant rule that allows the Court to give an answer to rule on Mr. Coman’s case. The acrobatics begin when the Court has to set limits to Article 21 TFEU, and it is quite surprising to see that such limits are found in… Directive 2004/38! In past cases the Court went as far as to argue that Article 21 TFEU had to be interpreted in light of Directive 2004/38, a troubling approach that was rightly criticized by AG Szpunar in his Opinion in the McCarthy case. The Court has learned better and has now stopped referring to Directive 2004/38 as the source of interpretation of the Treaties, but the outcome is pretty much the same. Mr. Coman’s husband will have a derivative right of residence under Article 21 TFEU, but it will be under the terms of Article 7 of Directive 2004/38, a provision that is not applicable to the case, but… voilà!

The second acrobatic exercise appears in the way in which the Court introduces the fundamental rights argument. It is a very welcome development that the Court is willing to openly state that the recognition of gay marriage has a fundamental rights dimension. But the way it does it is a good example of how tricky the implementation of fundamental rights can be in EU Law. Because Coman is a free movement case, the issue of fundamental rights appears when the Court explores the justification to a restriction. But Coman is not so much about restrictions on the grounds of fundamental rights (Omega, Schmidberger, etc…), it is a more sophisticated case which has its roots in the ERT case-law. Coman raises the issue of fundamental rights as a means of review of the justifications invoked by Member States. In other words, the question is not whether Romania could invoke the protection of fundamental rights to restrict Mr. Coman’s free movement rights, but whether such restrictions are in line with fundamental rights. It is a much more incisive approach that puts the Member State under a fundamental rights scrutiny by the Court of Justice in light of EU law (usually coined as the “derogation situation”). And that’s exactly what the Court does, although in such a cryptic way that we hardly know what standard it is aiming at. Nevertheless, we now know that gay marriage is a legal status covered and subject to protection under Article 7 of the Charter, as part of the fundamental right to private life.

The next somersault is the use of the European Convention of Human Rights. The Strasbourg court has dealt in the past with issues concerning gay rights, but its stance has been very cautious. There is no right under the ECHR to gay marriage and signatory States, according to the Strasbourg court, retain a large margin of discretion in this field. However, the Strasbourg case-law does recognize that in certain situations, when gay marriage or civil partnerships are recognized under domestic law, equality applies and so does the protection to private life. The Court of Justice has picked up a very cautious case-law and turned it into a more aggressive standard by silencing the real scope of the Strasbourg approach and making a muted reference to the cases of Vallianatos vs. Greece and Orlandi vs. Italy, two cases quoted in the judgment in Coman, but with no mention of the actual content of such decisions. When one reads those two judgments, it is obvious that the relevance of Article 8 ECHR was the result of very specific circumstances that differ from the case of Mr. Coman. But their appearance in the judgment of the Court of Justice reinforce a very blunt assertion on the part of the Luxembourg court: Member States have to comply with fundamental rights when they restrict free movement rules, and as long as gay marriage can be covered by the protection of family life, Romania’s decision to not recognize Mr. Coman husband’s residence right under EU law breached Article 7 of the Charter. I wonder if Strasbourg would have reached the same outcome in light of Article 8 ECHR only. But what is interesting is that now, through the means of EU law, in its complex but sophisticated acrobatic means of reasoning, Article 7 of the Charter, with the help of Article 8 ECHR, is probably going further than Strasbourg has gone before.

The fourth juggling exercise has to do with national identity and Article 4.2 TEU. Romania relied on this clause to protect its decision not to recognize gay marriage under its domestic law. Once again, the Coman judgment is not breaking any new ground, because the Court has handled national identity in the past in the free movement cases (remember Sayn-Wittgenstein?). However, if we contrast the reasoning in Coman with the reasoning in Sayn-Wittgenstein (surprisingly omitted in the Coman judgment), the outcome is quite surprising.

In Coman, the Court argues that EU law is not imposing gay marriage in Romanian law, it is only setting a duty to recognize the legal status of the couple under the law of another Member State in Romania. That is very reasonable and I completely agree with it. But take a look at Sayn-Wittgenstein and the reader will notice that the Court came to exactly the opposite conclusion. Although the name acquired under German law was perfectly in line with the provisions of that Member State, a prohibition of registration of aristocratic names under Austrian law found a justification on the grounds of… national identity! The Court was very sensitive to the fact that Austria’s republican form of State under its Constitution had specifically provided for an ad hoc treatment to the use of aristocratic treatments and names, and therefore the national identity clause was triggered with success. Of course, EU law would have not overruled those constitutional provisions in Austria, it would have only required Austrian law to recognize a name as granted under the law of another Member State. The parallelisms are so obvious that they need no further comment, but it seems clear to me that the Court is departing from the national identity clause when fundamental rights are at stake. And that’s a very important development.

Overall, the Coman judgment comes to a fair and reasonable outcome, but through very complex elaborations that only EU lawyers are used to. Considering how relevant this judgment is for free movement law and EU fundamental rights, I tend to worry that EU law is becoming too obscure and ungraspable for non-EU lawyers. In the same way that crucial areas of EU law, such as the direct effect of Directives, are becoming oversaturated with exceptions, derogations and subtle developments, fundamental rights law in the EU is following a similar path. It might be an inevitable outcome, considering the complexity and sensitivity of the issue, but we should not lose track of the fact that the final audience are generally not the EU experts. The main reader of this case-law is a national judge sitting in a court-house in a distant town in norther Sweden or in southern Italy. And I sincerely wonder if the acrobatics of our Luxembourg intellects are becoming too sophisticated for the audience to follow.

Welcome Mr. Coman and welcome yesterday’s ruling of the Court of Justice. But a little more simplicity, and less legal acrobatics, will do just as good to the noble cause of fundamental rights protection in Europe.