Soțul cetățeanului Uniunii, copilul plasat sub kafala și dreptul de ședere: inovație vs. dificultăți hermeneutice? Coman și SM
Same-Sex Spouse of a Citizen of the EU, Child Under Algerian Kafala and Right of Residence: Innovation vs. Hermeneutical Difficulties? Coman and SM

Summary/Abstract: The balance between the sovereign interests of states and individual interests is not easy to maintain when it comes to the family regime under Union law. The autonomous interpretations given by the Luxembourg Court on the rights of the family members of Union citizens in the context of exercising the right to free movement are directed towards a strengthened protection of the fundamental right on observing private and family life. In the Coman case, the Court promotes a bold line of thought to note that the notion of „spouse” within the meaning of article 2 point 2 letter (a) of Directive 2004/38 is gender neutral and also covers the same-sex spouse of the Union citizen. Having stated that Member States are free to recognize or not same-sex marriage, the Court states that they cannot impede the free movement of a Union citizen by refusing to grant to its same-sex spouse, a national of a non-EU country, the right of residence on their territory. Neither national identity nor public order can preclude the Court’s broad interpretations on a Member State’s obligation to acknowledge, solely for the purpose of granting a derived right of residence, for a national of a non-EU state, same-sex marriage concluded in another Member State. We do not find the same hermeneutical „acrobatics” in SM, where the Court seems oriented towards a stricter interpretation of the notion of direct descendant of a Union citizen. It is thus appreciated that the Algerian kafala regime does not create filiation relations in the sense considered by the direct descendant wording in article 2, point 2, letter (c) of Directive 2004/38. However, a child such as SM, placed under the legal guardianship of some Union citizens under the kafala regime, falls under the notion of „other family members” provided in article 3, paragraph (2), letter (a) of Directive 2004/38. In order to facilitate the right of residence, the Member State has the power to make a balanced and reasonable assessment of the circumstances of the case, taking into account, in particular, the best interests of the child.

• Details
• Contents