Just married, indeed! Same-sex marriage and free movement of EU citizens – the ECJ’s ruling in Coman and Others

 

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 by Sophie Perez Fernandes, Junior Editor

In a previous post, a report was given of the Opinion of Advocate General Wathelet, in the Coman and Others case. Based on a literal, contextual and teleological interpretation of Directive 2004/38, in particular its Article 2(2)(a), the Advocate General called for an autonomous and uniform interpretation throughout the EU of the term ‘spouse’ within the meaning of the directive, an interpretation which is independent of sexual orientation. Now that the European Court of Justice (ECJ) has delivered its ruling, the relevant interpretation of the term ‘spouse’ within the meaning of Directive 2004/38 has been made clear.

The Coman and Others case concerns the situation of Mr. Relu Adrian Coman, who holds both Romanian and American citizenship, and who married Mr Robert Clabourn Hamilton, a US citizen, in Belgium in 2010. Since the end of 2012, the couple have taken steps so that Mr Hamilton could, as a member of Mr Coman’s family, obtain the right to lawfully reside in Romania for a period of more than three months. Their request was denied on the basis that, under the Romanian Civil Code, marriage between people of the same sex is not recognised, and that an extension of Mr Hamilton’s right of temporary residence in Romania could not be granted on grounds of family reunion. Thereafter, the couple brought an action against the decision seeking, inter alia, a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement in the EU. In that dispute, they also argued that the relevant provisions of the Civil Code were unconstitutional, plea on which the Curtea Constituţională (Constitutional Court, Romania) was requested to rule on.
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