From Residence Rights to Full Recognition, but Not as a Marriage? Free Movement and the Expansion of the Obligation of Cross-Border Recognition of Same-Sex Marriages in Cupriak-Trojan and Trojan

In Cupriak-Trojan and Trojan , the CJEU addressed the cross-border recognition of same-sex marriages within the EU. The judgment builds on the Court’s earlier ruling in Coman , which required Member States to recognize a same-sex marriage concluded in another Member State for the limited purpose of granting a derived right of residence to the third-country national spouse of a Union citizen. Cupriak-Trojan and Trojan arose in a different factual context and raised the broader question of whether EU law requires a Member State to recognize beyond the specific context of family reunification a same-sex marriage lawfully concluded by its nationals in another Member State when they return to their state of nationality. This note examines the judgment and situates it within the Court’s evolving case-law on the cross-border recognition of family relationships. It argues that the judgment represents a significant development beyond Coman , confirming that Member States must recognize same-sex marriages concluded in other Member States beyond the specific context of family reunification, where the couple seek recognition of their marital status as such. At the same time, the judgment leaves considerable uncertainty regarding the precise scope of that obligation of recognition and thus constitutes an incomplete step in the protection of same-sex married couples exercising free movement within the EU.

Family member · Free movement · Member state · Obligation · Residence · Spouse · Conflict of Laws and Jurisdiction · Discrimination and Equality Law · European Law and Migration