The EU Court of Justice rules that EU free movement law should apply to same-sex couples

On 5 June 2018, in a landmark decision, the Court of Justice of the European Union (CJEU) ruled that a spouse of a same-sex marriage must enjoy the same freedom of movement rights as a spouse of a different-sex marriage. Defining for the first time “spouse” within the EU Directive on the exercise of freedom of movement as gender-neutral, the CJEU decision makes it clear that same-sex spouses of EU citizens must now be granted residence rights in the same way as different-sex spouses. FIDH, with other NGOs, intervened as a third-party in the national proceedings in Romania, which lead to the case being referred to the EU Court in 2016.

“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.”

Dimitis Christopoulos, FIDH President

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.”

Robert Wintemute, Professor of Human Rights Law at King's College London and regular expert with FIDH, who advised the couple's Romanian lawyers throughout the case

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.

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