Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play for the CJEU?

Abstract

EU law as it stands fails to provide same-sex couples legal certainty as regards their right of free movement under the EU Treaties. This chapter analyses in detail the situation in which a Member State refuses entry and residence to the same-sex spouse or (registered) partner of an EU citizen invoking free movement rights. Although the EU does not have the competence to harmonise Member States’ family laws, the primacy and full effectiveness of EU law require these laws to respect both the fundamental right to free movement of persons, as well as fundamental rights. This chapter argues that it is for the CJEU, as the EU’s “Supreme Court” and constitutional adjudicator, to guarantee these freedoms. An approach based on mutual recognition of the relationship status of Member States would allow for an inclusive definition of family, whilst respecting the division of competences between the EU and its Member States.