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by Adina Portaru

Every year on 9 May we celebrate Europe Day. The motto of the European Union (EU) is ‘United in diversity’. This came into use in 2000 and reflects the reality that the EU seeks harmonization and integration in a number of areas while being simultaneously enriched by different cultures, traditions, languages and religious backgrounds.

This unity in diversity is now facing a test, as the Court of Justice of the European Union (CJEU) has been seized with a landmark case (Coman and Others) which has the potential to undermine the competence of Member States in the area of marriage and family. The case deals with a same-sex couple, Romanian citizen Adrian Coman and his partner, US citizen Robert Claibourn Hamilton. In 2010, the couple obtained a “marriage certificate” from Belgium. When Romania, in line with its national law, refused to consider the pair to be a married couple, Coman and Claibourn sued the government, arguing that their right to freedom of movement within the EU had been violated. In 2016, the Romanian Constitutional Court referred questions of interpretation to the CJEU.

These questions boil down to the following: is a host Member State obliged to recognize the legal status of partners who are considered spouses and family members under the legislation of a different EU Member State? Even more so, can that be done in direct contradiction to the host States’ laws? Coman and Others has the potential to either uphold diversity and national sovereignty or to undermine the well-established competence of Member States in matrimonial matters.

The core notions of family law – spouse, family member, and marriage – fall within the competence of EU Member States. This is well supported by the language of EU directives on the matter, and consolidated by the CJEU jurisprudence. If the CJEU concludes that free movement requires a recognition of the understanding of ‘spouses’ from one Member State to the other, national competence on the issue would be completely eradicated. This would call for the rewriting of family codes, civil law and civil procedure regarding marital relations, adoption, blood bonds, employment, social benefits, and more. By obliging a Member State to recognize a definition of ‘spouses’ foreign to its own national order, the CJEU runs the risk of undermining the law in half of the EU Member States and of creating legal chaos as a result.

The legal implications would go far beyond the question of whether ‘spouses’ need to be of the opposite sex. For example, it may happen that a Member State decides to permit and regulate under-aged marriages. If the under-aged ‘spouses’ then decide to move to another EU Member State which allows marriage only from the age of 18, then a conflict of norms appears. The radical understanding of the free movement principle that the couple in Coman are pushing for would entail the host Member State being obliged to recognize the minors’ marriage contracted abroad, in violation of its domestic rules on marriage. Such an understanding of the principle of free movement would directly infringe upon the competence reserved to Member States, as established by the Treaties.

The fact that the case originates from Romania is interesting, given that there is an ongoing citizens’ initiative to enshrine marriage as the union of one man and one woman in the Constitution of Romania. This initiative, which was unanimously approved by the Constitutional Court of Romania, has gathered three million signatures, the largest support for such a petition in the history of Romania. In this context, forcing a Member State to amend its national law to legally recognize same-sex relationships means the deliberate frustration of a national democratic process.

In times where the EU is drifting apart, the CJEU could exacerbate the division of the Union if it decides to redefine marriage and family for all Member States. The Court should not sacrifice respect for national competency and cultural diversity by telling Member States that their national legal order does not matter. Many European countries recognize and protect marriage as a union between a man and a woman in their laws and constitutions, as is their right. A Member State should remain free to affirm in their laws that a mother and father are both essential in a child’s life. The EU should remain a free and open space for diversity.

You can learn more about the way the European Court of Human Rights approaches questions in these controversial areas in the ‘Conscience of Europe?’

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