Coman and Others v General Inspectorate for Immigration and Ministry of the Interior
Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne is a 2018 case of the European Court of Justice (ECJ) that affirmed residency rights to same-sex couples in EU countries that do not recognise same-sex unions, if at least one partner is an EU citizen and if the marriage was legally performed in an EU member state.[1]
Decided 5 June 2018 | |
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Full case name | Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne |
ECLI | ECLI:EU:C:2018:385 |
Chamber | Full Court |
Court composition | |
Judge-Rapporteur Marko Ilešič | |
President Koen Lenaerts | |
Advocate General Melchior Wathelet |
EU law
Article 21 TFEU defines that "every citizen of the Union shall have the right to move and reside freely within the territory of the Member States."
Directive 2004/38/EC (the Citizens’ Rights Directive or Free Movement Directive) defines this right. It grants the same freedom to family members of Union citizens (including spouses), even if they are not nationals of an EU member state. "Family members" (Article 2(2)) include the spouse, the registered partner, a child under 21, or a dependent child or parent (of the Union citizen or partner). There is a second category of "any other family member", which can be included at the discretion of national legislation.
The Charter of Fundamental Rights of the European Union affirms the freedom of movement and of residence (Article 45) and furthermore guarantees the right to respect for private and family life (Article 7), guarantees the right to marry (Article 9) and prohibits discrimination based on, among other grounds, sex and sexual orientation (Article 21).
Case background
In 2010, Adrian Coman, a Romanian national and thus EU citizen, married Claibourn Robert Hamilton, a US citizen, in Belgium, an EU member state where same-sex marriage is legal.[2] The Civil Code of Coman's home country Romania prohibits same-sex marriage and does not recognise same-sex marriages performed abroad. On these grounds, the Romanian immigration authorities denied a residence permit for his spouse when the couple wanted to move back after living in the United States. They challenged the decision before the Court of First Instance in Bucharest, which referred the case to the Constitutional Court of Romania, which in turn asked for a preliminary ruling from the European Court of Justice.
Preliminary questions
The questions referred by the Constitutional Court of Romania to the European Court of Justice on 29 November 2016 were:
2. If the answer [to the first question] is in the affirmative, do Articles 3(1) and 7([2]) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant the right of residence in its territory for a period of longer than three months to the same-sex spouse of a citizen of the European Union?
3. If the answer to [the first question] is in the negative, can the same-sex spouse, from a State which is not a Member State of the Union, of the Union citizen to whom he or she is lawfully married, in accordance with the law of a Member State other than the host State, be classified as “any other family member” within the meaning of Article 3(2)(a) of Directive 2004/38 or a “partner with whom the Union citizen has a durable relationship, duly attested”, within the meaning of Article 3(2)(b) of that directive, with the corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if that State does not recognise marriages between persons of the same sex and provides no alternative form of legal recognition, such as registered partnership?
4. If the answer to [the third question] is in the affirmative, do Articles 3(2) and 7(2) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant the right of residence in its territory for a period of longer than three months to the same-sex spouse of a Union citizen?’Ruling
A hearing was held on 21 November 2017. The Advocate General Melchior Wathelet delivered his opinion on 11 January 2018.[3] The Court followed the opinion and ruled as follows in Grand Chamber on 5 June 2018:[4]
See also
- LGBT rights in the European Union
- Recognition of same-sex unions in Europe
- Schalk and Kopf v Austria (2010 European Court of Human Rights case)
- Obergefell v. Hodges (2015 United States Supreme Court case)
References
- "Same-sex spouses have EU residence rights, top court rules". BBC. 5 June 2018.
- "Romania Gay Marriage Case Could Have Outsize Impact in Europe". New York Times. 21 November 2017.
- "Gay spouses have rights in all EU countries, says European court official". The Guardian. 11 January 2018.
- "PRESS RELEASE No 80/18" (PDF). Court of Justice of the European Union. 5 June 2018.