ECJ: Gay Marriages in EU States Recognized Across EU for Freedom of Movement After Suit by Romanian Man

Mr Relu Adrian Coman, a Romanian national and Mr Robert Hamilton, an American national, married in Brussels in 2010.

In December 2012, they contacted the Romanian authorities to request information on the procedure and conditions under which Mr Hamilton, could obtain the right to reside lawfully in Romania for more than three months.

In response to that request, the Romanian authorities informed Mr Coman and Mr Hamilton that the latter only had a right of residence for three months, on the ground, in particular, that he could not be classified in Romania as a ‘spouse’ of an EU citizen as that Member State does not recognise marriage between persons of the same sex (‘homosexual marriage’). 

The Romanian Constitution does not currently prohibit same-sex marriages.

Article 48 (1) of the Basic Law states that "The family is founded on the freely consented marriage between spouses, on their equality, and on the right and duty of parents to ensure the raising, education and training of children." The provisions are, however, complemented by the Civil Code which explicitly establishes that it is the union between man and woman: "Marriage is concluded between man and woman through their personal and free consent" (Article 271).

The term ‘spouse’ within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members includes spouses of the same sex.

“Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory”.

Mr Coman and Mr Hamilton, therefore, brought an action before the Romanian courts seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement within the EU.

By today’s judgment, the Court observes, that the directive on the exercise of freedom of movement governs only the conditions determining whether an EU citizen can enter and reside in the Member States, other than that of which he is a national and does not confer a derived right of residence on nationals of a non-EU State who are family members of an EU citizen in the Member State of which that citizen is a national.

The directive cannot, therefore, confer a derived right of residence on Mr Hamilton in the Member State of which Mr Coman is a national, namely Romania.

The Court nonetheless observes that, in certain cases, nationals of non-EU states, family members of an EU citizen, who are not eligible, on the basis of the directive, could be accorded such a right on the basis of Article 21(1) of the Treaty on the Functioning of the EU  - a provision which confers directly on EU citizens the primary and individual right to move and reside freely within the territory of the Member States.

Essentially the result is that Romania must recognize their marriage under EU law for the sake of freedom of movement, but does not have to recognize it more generally, nor allow marriages to take place inside of Romania.

Petya Petrova

Petya Petrova is a journalist, believer, and traveler.

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