The European Court of Justice has ruled that although it is within the margin of appreciation for Member States to legalise marriage between persons of the same sex, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory.
The applicants Mr Coman, a Romanian citizen, and Mr Hamilton, a U.S. citizen, had married in Belgium where same sex marriage is legal. Mr Coman decided to move back to Romania with his spouse. He contacted the Romanian Authorities and requested information on how his spouse could obtain the right to reside in Romania because he was a family member of Mr Coman. The European directive on the freedom of movement allows spouses of EU citizens to join their spouse in the State where the spouse is living.
The authorities stated that Mr Hamilton could not obtain the right to reside longer than three months as same sex marriage in not recognised in Romania. The authorities informed the applicants that Mr Hamilton is not seen as a spouse and cannot avail of the right under the directive.
The applicants brought an action before the Romanian Constitutional Court and sought a declaration that they have been discriminated against on the basis of their sexual orientation in regards to their freedom of movement within the European Union. The Romanian Constitutional Court referred to the CJEU the question on whether Mr Hamilton is to be regarded as a spouse of Mr Conam and should therefore be granted the right to reside in Romanian. Click here for a PILA Bulletin feature on the Advocate General’s opinion in the case.
The CJEU discerned that the directive on freedom of movement determines the matter in which an EU national can enter and reside in a member state other than his own and does not grant a right to non-EU nationals to reside in a member state on the basis that they are a family member of an EU national. The directive therefore could not be used to grant Mr Hamilton a right of residence in Romania. The Court noted that in some cases, a non-EU national, who is a family member of an EU citizen, could gain the right of residence under Article 21(1) of the Treaty on the Functioning of the EU.
The Court stated that the term spouse in the Directive does refer to any specific gender and it may include a same sex spouse. Nevertheless, member states are still free to decide on whether they will allow same sex marriage in their own territory. The Court recognises the competence and sovereignty of each member state in making their own legislations. However, the refusal of the Romanian state to recognise Mr Coman and Mr Hamilton’s marriage, for the purposes of the granting a right to residence, may interfere with Mr Coman’s right to freedom of movement.
The Court found that that was an obligation for member states to recognise a same sex marriage, which occurred in another member state, for the purpose of granting the right of residence. This would not affect the rules on marriage in the member state and would not require them to provide for same sex marriage in their legislation.
The case was supported with pro bono legal representation by international law firm White and Case (click here for further information).
Click here for the press release of the CJEU.
Click here and here for further commentary on the case.