THE LEGAL IMPLICATIONS OF COMAN WHATS NEXT Alina

THE LEGAL IMPLICATIONS OF COMAN: WHAT’S NEXT? Alina Tryfonidou, Professor of Law, University of Reading

WHAT THE ECJ DECIDED IN COMAN When an EU citizen moves from one Member State to another with the aim to settle in the latter and that EU citizen is married to a person of the same sex and their marriage was contracted in an EU Member State The Member State to which the EU citizen moves is required to recognise the couple as ‘spouses’ for the purpose of granting family reunification rights deriving from EU law (Dir. 2004/38 & Art. 21 TFEU): i. e. the Member State to which the EU citizen moves is required to accept within its territory and grant a right of residence to his or her samesex spouse 30/4/2020 Prof. Alina Tryfonidou, University of Reading 2

WHAT THE ECJ DID NOT (yet) DECIDE IN COMAN What happens in situations where the (same-sex) marriage was not contracted in an EU Member State? What happens when the same-sex couple needs to be recognised as ‘spouses’ in the host Member State for purposes other than family reunification? What happens in situations when the Union citizen and his/her same-sex spouse move to another EU Member State only temporarily? (e. g. as tourists or to receive medical treatment) What happens in situations involving third-country nationals who claim family reunification rights with their same-sex spouse? (Dir. 2003/86) 30/4/2020 Prof. Alina Tryfonidou, University of Reading 3

What happens with same-sex registered partnerships and de facto partnerships? ADDITIONAL EU LAW QUESTIONS THAT CAN BE RAISED IN FUTURE COMPLAINTS • Family reunification rights: (like with ‘spouses’) not clear from text of Directive 2004/38 that terms include same-sex registered/de facto partnerships: so need for clarification if these terms include same-sex couples • But for these categories: no automatic family reunification rights: • (both opposite-sex and same-sex) registered partnerships: position depends on the law of the host Member State i. e. if it recognises RPs as equivalent to marriage • (both opposite-sex and same-sex) de facto partnerships: no automatic family reunification rights (host Member State merely needs to ‘facilitate’ their entry and residence) • Other rights and entitlements: should same-sex registered partnerships and de facto partnerships be treated in the same way as opposite-sex registered partnerships and de facto partnerships? Cross-border legal recognition of rainbow families • In particular, cross-border legal recognition of the parent-child relationship (esp. between the child and the non-biological parent): does EU law require the Member State to which the family moves to recognise the familial ties (already established elsewhere) between a child and both of his/her samesex parents? 30/4/2020 Prof. Alina Tryfonidou, University of Reading 4

THANK YOU! a. tryfonidou@reading. ac. uk 30/4/2020 Prof. Alina Tryfonidou, University of Reading