Same-sex spouses have EU residence rights

Same-sex spouses have EU residence rights

by Christine Yoncheva, Bulgaria and Jesús Alamo Ascencio, Spain & EU
Last updated Tuesday, October 30, 2018

Nowadays the LGBT (lesbian, gay, bisexual and transgender) rights in Europe are one of the most modern and discussed topics around the world. The reason is that they are widely diverse per each European country. For example, fact is that only fifteen European countries have legalized and perform same-sex marriage – those are Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden and the UK. In Austria same-sex marriages will be legal from 2019.

An additional eleven other legally recognize some form of civil union – Andorra, Croatia, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Italy, Liechtenstein, Slovenia and Switzerland. San Marino and Poland recognize cohabitation of a citizen’s partner, although in Poland there are many limitations. Armenia and Estonia recognize same-sex marriages performed in any foreign jurisdiction, and Slovakia gives recognition if they are performed within the EU and include an EU citizen.

Finally, there are the counties who constitutionally define marriage as a union between a man and a woman, therefore do not perform same-sex marriage – Armenia, Belarus, Bulgaria, Croatia, Georgia, Hungary, Latvia, Lithuania, Moldova, Montenegro, Poland, Serbia, Slovakia, Ukraine and Romania.

On an international level, a very interesting case occurred in 2010 issuing same-sex spouses’ immigration rights. That same year two men – Adrian Coman, a Romanian national, and his American partner Clai Hamilton – got married in Brussels. During that time Mr. Coman worked for the European Parliament and Mr. Hamilton went back to the USA. In 2012 Mr. Coman stopped working for the European Parliament.

Not long after he contacted the Inspectorate in order to get information about the procedure under which his spouse could obtain the right to reside in Romania for more than three months, as the Romanian Civil Code does not recognize marriage between people of the same gender. Article 227 of the Romanian Civil Code states the following: “Marriage between persons of the same sex shall be prohibited” and “Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognized in Romania”.

Deciding to take actions into their own hands, Mr. Coman and Mr. Hamilton brought the question before the Court of First Instance in Bucharest, seeking for declaration of discrimination on the basis of sexual orientation, as well as a compensation for the non-material damage suffered. Not long after the decision was into the hands of the Constitutional Court.

The Constitutional Court stayed the proceedings and referred four questions to the European Court of Justice for a preliminary ruling. Those questions were based on Directive 2004/38:
1. Does the term “spouse” in the Directive include the same-sex spouse from a non-member state?
2. If the answer is “yes”, does that mean that Romania is obligated to grant the right of residence to Mr. Hamilton?
3. If the answer is “no”, could he be classified as another family member, within the meaning of the Directive?
4. If the answer to the previous question is “yes”, does that give the right of Mr. Hamilton to reside in Romania for more than three months?

Before answering those questions, the Court had to take in mind the following facts:
1. Mr. Coman’s spouse does not come from a Member State of the EU;
2. Mr. Coman is a citizen of the EU;
3. They are lawfully married in accordance with the law of a Member State.

As we are living in the 21st century in the EU, we have to ask ourselves the question – can we obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse a right of residence in the same territory? This topic is about the right to personal life, family life and private life and the provisions relating to the principle of equality in the context of human rights. More specifically, Article 21 of the European Charter on Fundamental Rights forbids discrimination on the grounds of sexual orientation.

Firstly, every national of a Member State has the right to move and reside in another Member State and, according to the Court’s decision – that includes the right to lead a normal family life, together with their family members, both in the host Member State and in the Member State of which they are nationals. As the term “spouse” is mentioned in the Directive, the Court specified that, in the context of the Directive, the term is gender-neutral.

Secondly, all Member States must comply with the EU law. Therefore, Romania cannot rely on its national law as justification for refusing to recognize a marriage concluded by its citizen and same-sex partner.

Taking into account the Treaty on the Functioning of the European Union (TFEU), the Court stated that the effectiveness of the EU citizen rights in such case requires that the EU citizen’s family life may continue when he returns to the Member State of which he is a national by granting the derived right of
residence to his family member. That means that the refusal of that right interferes with the exercise of the right of every EU citizen to move and reside freely on the territory of the Member States.

It follows that Romania must grant Mr. Hamilton residency rights, even though Romania itself does not permit same-sex marriage. As a result, from 5th June 2018 all EU member states are obligated to legally recognize residency rights of all EU citizens, no matter their sexual orientation.

As a final step, the Romanian Constitutional Court decided on 18th July 2018 that same-sex married couples have the right to reside in the country if one of the spouses is a Romanian citizen.

However, Romania, one of the youngest Member States, may not be ready to change its definition of marriage, proof of which is the referendum from 6-7th October 2018. Only 3,7 million voters out of 18,2 attended, which is about 21%. Over 90% of these voted to change the constitution to ban same-sex marriage– but the result was invalidated for lack of a quorum. However, the level of attention attracted by the referendum gave LGBT Romanians a good opportunity to speak up about the state of their rights.

Seeming like a small step for LGBT rights in Romania, this case actually has a big impact on the EU. The six Member States that do not recognize same-sex marriage are now forced to do so in accordance with the ruling of the European Court of Justice, in what is now known as the Coman-Hamilton case.

Directive 2004/38
Treaty on the Functioning of the European Union
European Charter on Fundamental Rights