Three Years with Coman: How Much Has Changed?

Abstract

In 2018, the ECJ ruled in its landmark Coman judgment (C-673/16) that same-sex spouses of EU citizens exercising their freedom of movement must be granted a right of residence even in Member States that do not recognize same-sex marriages. Looking back on the judgment after 3 years, this article reviews the academic reactions which ranged from criticism to celebration of the judgment. Using the example of the Czech Republic, it then assesses the judgment’s practical impact to see whether the initial expectations regarding future development came true, and identifies potential barriers in the national law that could still hinder free movement of same-sex couples. Finally, the article discusses what lessons can be learnt from the Coman judgment for other similar cases before the ECJ, especially those concerning the status of children born to same-sex couples.

The article argues that there have been no noticeable changes in Czech law ascribable to the Coman judgment. This suggests that beyond the narrow holding strengthening the same-sex couples’ residence rights, though symbolically and practically important, possible greater impact of the Coman case on Member States’ national law should not be overestimated. However, the judgment’s significance lies in its potential to shape the future ECJ’s case-law because the free movement framework used in Coman can be similarly applied to cross-border recognition of same-sex couples and families for other purposes than residence rights. If the ECJ does so in the upcoming cases and properly tackles the Member States’ national identity or public policy objections, further developments of gay rights through EU law might take place.