The notion of spouses must also include same-sex spouses in European Union law – A.G. Wathelet

Bucharest, 11.01.2018 – Today, before the Court of Justice of the European Union (CJUE) in Luxembourg, Advocate General Melchior Wathelet presented his opinion in the case of the Coman-Hamilton family. The Advocate General considers that the concept of “spouse” in the European Free Movement Directive includes same-sex spouses. Consequently, the Romanian state should have allowed the Coman-Hamilton family to settle in Romania as spouses in order to continue their family life established abroad. The final decision of the European judges in this case is expected in the spring of 2018.

“The Advocate General’s Opinion supports all the arguments ACCEPT and the plaintiffs have put forward to European judges. He pointed out that the notion of spouses within the directive must be given throughout the Union an autonomous and uniform interpretation that includes same-sex spouses. In practice, this means that, from the point of view of European Freedom of Movement legislation, same-sex spouses should be equal in rights with opposite sex spouses, irrespective of the law of the Member States. His opinion is based on the evolution of legislation in the vast majority of EU Member States that recognize and protect gay families – 22 out of 28 states already offer civil partnership or marriage for same-sex couples. Moreover, Advocate General Wathelet points out that discrimination on grounds of sexual orientation cannot be justified by invoking the protection of the traditional family. We expect the decision of the European judges to consider all these arguments and, hopefully, we will have a favorable judgment within a few months,” said Iustina Ionescu, a human rights lawyer and member of the ACCEPT Association.

The Advocate General fulfills the role of an expert in European law in court proceedings at the level of the Court of Justice of the European Union, and offers judges an impartial, specialist opinion. This opinion helps European judges to make their final decision. ACCEPT expects the final decision of the 15 judges of the Grand Chamber of CJEU in the spring of this year.

“We are very glad to receive the Advocate General’s opinion. His interpretation shows that the Romanian authorities have wrongly refused to treat us as a family. We hope that the decision of European judges will confirm that we have the right to live together in Romania as spouses,” said Clai Hamilton.

“The decision of the European judges will be extremely important for the Constitutional Court and hopefully it will be understood by the Romanian politicians: Romanian citizens cannot be divided into good and gay. We can no longer be treated as inferior citizens without equal rights on the basis of the prejudices that some people have about homosexuality,” Adrian Coman added.

Adrian Coman, Clai Hamilton and the ACCEPT Association have been heard by the Grand Chamber of the CJUE to establish the definition of the term “spouses” in European Union law on free movement on the territory of the EU on 21 November 2017. The case is being analyzed by the European court because their opinion has been requested by the Romanian Constitutional Court to determine whether the articles in the Civil Code prohibiting the recognition of gay marriages outside Romania are constitutional or not.

Once the CJEU has given its ruling in the spring of 2018, the case will return to the RAC for a final decision in this case. The European judges’ decision is mandatory for both the Romanian court and all judges in the European Union.

Read the CJUE press release here:



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