Asser researcher examines the free movement of same-sex spouses in the EU

Published 19 February 2020

The CJEU decided that married same sex couples could move anywhere within the EU without restriction ©Shutterstock

Asser Senior Researcher Dr Ulad Belavusau recently published a co-authored article in the Common Market Law Review that examines the Court of Justice of the European Union’s (CJEU) decision in the Coman (2018) case, which relates to free movement of same-sex couples in the European Union (EU). The Court decided in June 2018, that married same sex couples could move anywhere within the EU without restriction and regardless if the law of a Member State recognises same-sex marriages.

Term “Spouse” as gender-neutral
The CJEU clarified that the meaning of the term ‘spouse’ was gender-neutral, such that same-sex spouses enjoy free movement rights equally to married heterosexual couples, and opening up the door to the recognition of same-sex marriage for immigration purposes all around the EU. This clarification destroys the heteronormative (mis)interpretations by several Member States of the clear language contained in the EU Citizens’ Free Movement Directive. In other words, the term "spouse" no longer refers to a specific gender and paves the way for same-sex couples. In the article, Belavusau and his long-standing co-author Prof. Dimitry Kochenov (Chair in European Constitutional Law at the University of Groningen), conclude that the decision has greatly contributed to the anchoring of equality rights in the EU.

The Coman Decision
This case was filed by Adrian Coman, a Romanian national, who married his American partner in Belgium, and wanted to reunite with his partner in Romania by practicing his free movement rights. However, the residence permit for his husband was refused on the ground that the couple’s same-sex marriage could not be recognised. The Coman decision was one of the first of its kind as it addressed the recognition of same sex marriages in the EU through legal and judicial proceedings by the CJEU. The decision established that married same-sex couples could enjoy free movement rights equally to heterosexual married couples throughout the whole of the EU, regardless of the legislation of any particular Member State. This case specifically led to further development of equality and anti-discrimination law in Europe.

A more detailed account of the Coman case, co-authored by Kochenov and Belavusau, is also available as a EUI Working Paper. This paper provides a much more critical analysis of the case than the article in the Common Market Law Review. In particular, the authors underline a line of extra questions which remain open and which the Court will need to turn to in the near future to ensure marriage equality moves beyond mere proclamations in the whole territory of the Union.

Read the full article here.

Further Reading
The latest issue of the Common Market Law Review (volume 57, No. 1, 2020) is now available online. The article builds on the extensive research of Belavusau on sexual rights of EU citizens, unfolded, in particular:

  1. Belavusau, “EU Sexual Citizenship: Sex Beyond the Internal Market, in Dimitry Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights, Cambridge University Press, 2017. 417-442.
  1. Belavusau, Towards EU Sexual Risk Regulation: Restrictions on Blood Donation as Infringement of Active Citizenship, European Journal of Risk Regulation, 7, 4, 2016. 801-809.
  1. Belavusau & D. Kochenov, Federalizing Litigation Opportunities for LGBT Plaintiffs in Europe, in Koen Slootmaeckers, Peter Vermeersch & Heleen Touquet (eds.), The EU Enlargement and Gay Politics, Palgrave, 2016. 69-96.
  1. Belavusau, A Penalty for Homophobia from EU Non-Discrimination Law, Columbia Journal of European Law, 2, 2015. 353-381.
  1. Belavusau, Art, Pornography and Foucauldian Reconstruction of Comparative Law, Maastricht Journal of European & Comparative Law, 17, 3, 2010. 252-280.
  1. Belavusau, Sex in the Union: EU Law, Taxation and the Adult Industry, European Law Reporter, 4, 2010. 144-150.

Dr Ulad Belavusau is part of the Asser research strand on Human Dignity and Human Security in International and European Law. This research strand adopts a human rights approach to global challenges in the field of counter-terrorism, international criminal law, international humanitarian law, international trade, environmental protection, European private international law, and the law of EU external relations. It examines what it means to safeguard human dignity - also in relation to human security - in these areas.