Coman Case Referred to the Court of Justice of the European Union

 

EU judges will interpret the term „spouse,” as regards the right to free movement of same-sex couples on the EU territory.

ACCEPT welcomes the decision of the Romanian Constitutional Court (RCC) to consult the Court of Justice of the European Union (CJEU), regarding the interpretation of community law on the application of the right to free movement of European citizens in same-sex families. The decision is historical, being the first time when the RCC sends preliminary questions to the Luxembourg-based Court. Also for the first time, the CJEU is asked about the meaning of the term „spouse” in the EU Directive on the right to free movement, in order to clarify whether it includes same-sex spouses. Through this decision, the RCC shows that Romania belongs to a space of European values, from which our country cannot be separated nor isolated.

„The RCC decision is encouraging, as it is an important step for a unitary interpretation of community law, regarding the application of the right to free movement of EU citizens. CJEU will decide regarding mutual recognition of the family status for same-sex couples, by interpreting and clarifying the term „spouse.” This basic principle of community law allows Romanians to move freely to other EU Member States to live, work or study; EU citizens’ rights also need to be respected when they move to Romania,” said Iustina Ionescu, human rights lawyer and ACCEPT member.

„Clai and I promised each other and before the Belgian law to love and take care of one another for the rest of our lives. The recognition of our family in Romania does not hurt anybody. It does help us not to become strangers when we cross the border of my native country and to retain our human dignity before the Romanian State,” said Adrian Coman.

The case of the Coman-Hamilton family is suported by the Anti-discrimiantion Coalition in Romania.


 

Case Timeline:

October 27, 2016: ACCEPT, Adrian Coman and his family appear before the Romanian Constitutional Court in a new hearing, following the RCC decision in September 2016 to re-hear the case. In the context of community law, which guarantees the right to free movement, ACCEPT asks the RCC to send preliminary questions to the Court of Justice of the European Union. RCC decides to postpone its decision to Novemebr 2016 on whether to send preliminary questions to the CJEU. ACCEPT asked to clarify how the provisions in the community law and the Romanian Constitution can be interpreted harmoniously when the family status of LGBT people is questioned in the context of the application of their right to free movement. EU judges are asked to interpret the term „spouse” in the context of community law and the principle of free movement on the EU territory, and whether this term includes spouses of the same sex. Also, ACCEPT would like the EU Court to clarify whether, in community law, same sex spouses have equal rights regarding the right to reside on the Romanian territory.

September 20, 2016: While expected to make a decision on this date, the RCC anounces a new hearing of the Coman-Hamilton family case and postpones to October 27, 2016 the examination of whether civil code art. 277 (2) and (4) are constitutional; the two paragraphs prohibit the recognition of same-sex marriages registered abroad, except as regards the right to free movement on the EU territory. Adrian Coman and Clai Hamilton, joined by ACCEPT, ask for the recognition that they are a family and have the right to move to Romania. All this time, their family life continues in New York, far from their parents in Romania.

July 20, 2016: RCC postpones to September 2016 its decision in the Coman-Hamilton family case and allows a separate initiative to redefine family in the Romanian Constitution to move forward to the Parliament. The Court is to assess the initiative again after approval in Parliament.

December 2015: Bucharest Fifth District Court admits the complaint of the Coman-Hamilton family and ACCEPT, and agrees to refer the civil code provisions to the Romanian Constitutional Court.

October 2015: First hearing before the Bucharest Fifth District Court in the Coman Hamilton family case. ACCEPT requests referral to the Romanian Constitutional Court of civil code Article 277 (2) and (4).

September 2015: Bucharest Court of Appeal clarifies that the Bucharest Fifth District Court is competent to hear the Coman-Hamilton family case.

October 2013: ACCEPT and the Coman-Hamilton family file a complaint against the Romanian Government, represented by the General Inspectorate for Migration and the Ministry of Internal Affairs. Bucharest Fifth District Court declines its competence to hear the case; for two years Romanian Courts try to establish which court has the competence to hear the case.

January 2013: General Inspectorate for Migration declines to consider a residence for Clai Hamilton in Romania, despite his marriage to an EU citizen, Adrian Coman. If Adrian Coman married a female citizen of the United States, she would have received a positive response, with no restrictions.

December 2012: Adrian Coman asks the General Inspectorate for Migration to consider a residence permit for his husband, Clai Hamilton, on the basis of the right to free movement for EU citizens and their family, which includes a spouse who is not an EU citizen.

September 2012: Being unemployed, Adrian Coman considers returning to Romania, together with his husband. He begins the procedure by requesting a transcription of the Belgian marriage certificate into the Romanian register, which is one document requested to apply for a residence for his husband. The Romanian Consulate in Belgium declines his request.

November 5, 2010: Adrian Coman and Clai Hamilton marry in Brussels, Belgium, after eight years of a stable relationship.

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