“The EU Court of Justice decision in the Coman & Hamilton Case is a milestone in the protection against discrimination on the ground of sexual orientation and the fight for the recognition of the rights of same-sex couples. It obliges all 28 EU Member States to recognise a same-sex marriage from another EU Member State for the purpose of granting freedom of movement rights, including residence rights.”
This Court decision was delivered in the Coman & Hamilton Case (Case C-673/16) after the Romanian Constitutional Court referred to the CJEU the question of whether “spouse” in EU free movement law could include a same-sex spouse. Adrian Coman (a citizen of Romania) married Clai Hamilton (a citizen of the USA) in Belgium in 2010, but Romania refused to grant a residence permit to his husband. Coman and Hamilton then brought a case against Romania for discrimination on the ground of sexual orientation and for breaching Coman’s EU free movement rights.
FIDH, with ILGA-Europe and the AIRE Center, signed an amicus brief submitted to the Romanian Constitutional Court in 2016 providing with comparative case-law and European jurisprudence regarding the right to private life, the right to non-discrimination and the recognition of same-sex marriage concluded abroad. FIDH calls upon the Romanian authorities to implement this CJEU judgment and grant Clai Hamilton and all same-sex spouses in the same position the same residence rights as different-sex spouses.
This momentous decision will help to accelerate the increase of legal protection for same-sex couples and their families and could have an important impact on the legislation of EU Member States, including relating to same-sex marriage. In 2018, 14 of 28 Member States permit same-sex couples to marry (including Austria, under a Constitutional Court decision that will take effect on 1 January 2019), while 8 have some form of registered partnership law. Only 6 EU Member States do not recognise same-sex couples: Romania, Bulgaria, Slovakia, Poland, Lithuania, and Latvia.
“Even if the Coman judgment does not itself require the six remaining EU Member States to introduce marriage or registered partnership for same-sex couples, it reflects a positive evolution in the legislation of EU Member States towards increased legal protection of same-sex couples.”
Three judgments of the European Court of Human Rights require action in the 6 EU Member States, and in at least 13 non-EU Council of Europe Member States. Under Oliari & Others v. Italy (2015) and Orlandi & Others v. Italy (2017), every Council of Europe member state must introduce a "specific legal framework" for same-sex couples, which must contain certain core rights, but does not have to be identical to marriage. Under Taddeucci & McCall v. Italy (2016), each Member State must provide a means for a same-sex couple to qualify for a residence permit: by recognising a foreign marriage, by creating the "specific legal framework" required by Oliari and Orlandi, or by recognising unregistered cohabitation in the case of same-sex couples who are legally unable to marry. FIDH was a third-party intervener with other NGOs in the Oliari and Orlandi cases.