The Court of Justice of the European Union (CJEU) has today decided in Luxembourg that the term “spouses” of the Free Movement Directive within the European Union (EU) also includes same-sex spouses. The CJEU decision is issued in Coman, Hamilton and ACCEPT vs. IGI, MIA and CNCD, tried by the European Court at the request of the Romanian Constitutional Court (RCC).
“Now we can look into the eyes of any public servant in Romania and across the EU, with the certainty that our family relationship remains as valuable and equally relevant, regardless of the country where we live in the European Union. We are happy that European judges have recognized us as a family, and we thank all those who have supported us – and indirectly all other families in a similar situation. Today, human dignity has won, “said Adrian Coman.
Following today’s CJUE decision, the Coman-Hamilton family case returns to the constitutional judges in Romania. The RCC requested the CJEU’s opinion in November 2016, in a procedure called a preliminary reference, in which it wished to understand from European judges whether same-sex spouses have rights under the Free Movement Directive.
“The CJEU responds without hesitation to the question raised by constitutional judges: all families, regardless of the sexual orientation of their partners, have equal rights in the field of free movement. The CCR now has the obligation to respect the decision of the CJEU and to recognize that Adrian and Clai are a family. The decision does not oblige Romania to introduce marriage between persons of the same sex, but only obliges to recognize the legal effects of a relationship already registered, such as the right of establishment of residence in Romania for Clai, who is an American citizen,” said Iustina Ionescu, the human rights lawyer representing the petitioners at the CCR and the CJEU.
In the immediate period thereafter, the RCC should rule on the unconstitutionality objection raised by ACCEPT, Adrian and Clai regarding the Article 277 (2) and (4) of the Civil Code. These articles prohibit the recognition of same-sex marriages concluded outside of Romania, but at least theoretically without affecting the right of European citizens to move freely.
“Following today’s decision, the RCC must firstly declare unconstitutional the prohibition in the Civil Code regarding the recognition of same-sex marriages outside Romania. Both our country and Poland, Slovakia, Bulgaria, Lithuania and Latvia will be obliged to adopt measures to ensure the free movement of EU citizens and that of their families based on same-sex couples – to grant the right of residence as spouses and to provide a minimum set of rights. This can only be achieved by adopting clear, predictable and unitary legislation on the legal protection of same-sex couples, “said Romaniţa Iordache, legal expert on non-discrimination and ACCEPT vice-president.
“Simply put, the CJEU decision can be implemented in Romania by regulating the civil partnership. To date, the overwhelming majority of EU Member States (22 out of 28) already provide a form of protection for gay couples. Romania is ranked poorly in Europe, ignoring the daily needs of families in the community. The ignorance of authorities has serious consequences and leaves same-sex couples without legal protection in the most difficult moments of life – in the case of an unexpected death or in relation to the medical field when it comes to co-insurance or medical decisions for the life partner ” said Florin Buhuceanu, Executive President, ACCEPT Association.
The Coman, Hamilton and ACCEPT vs. IGI, MIA and NCCD case is supported by the Anti-Discrimination Coalition and ILGA-Europe. The ACCEPT team was pro bono supported at hearings at CJUE by White & Case LLP, through partner Jacquelyn MacLennan, and associate lawyers Andrew Wright, Florence Humblet and Pierre Pecheux.
“From the first moment that ILGA-Europe intervened as a third party in the Coman proceedings at national level in 2016, we could see the immensely positive impact the case could have. It will increase legal protection and certainty for same-sex couples – the importance of this decision should not be underestimated. This clarity will finally ensure that same-sex couples (not only in Romania, but all over the EU) can fully enjoy the freedom of movement within the 28 Member States. This case highlights the power of strategic litigation and the enduring relevance of the EU (and its laws) in people’s lives,” said Arpi Avetisyan, strategic litigation officer at ILGA-Europe.