The Court of Justice of the European Union (CJEU) ruled on June 5, 2018 in a This is a landmark ruling in the defense of the rights of same-sex couples.
It recognizes for the first time the right of residence of same-sex marriages in all Member States of the European Union, regardless of whether or not this type of marriage is legalized in that Member State. The judgment was motivated by the questions referred by the Curtea Constituţională – the Romanian Constitutional Court – to the European Court for a preliminary ruling, following a question of unconstitutionality brought by Relu Adrian Coman, a Romanian national whose spouse, Robert Clabourn, was denied residency in Romania.
In the case we are analyzing today, the Romanian authorities denied the right to reside legally in the country for a period of more than three months to Clabourn, an American national, after he married Coman in Brussels in 2010, on the grounds that “same-sex marriage” was not recognized in the Romanian Civil Code.
In response, Coman brought an action before the Romanian Court of First Instance against the Romanian Inspectorate, “seeking a declaration of discrimination on grounds of sexual orientation with regard to the exercise of the right to freedom of movement within the Union and an order that the Inspectorate put an end to this discrimination and pay compensation for non-material damages”.
This appeal resulted in the recognition of the right of residence of same-sex couples throughout the Union.
The right of residence of same-sex married couples exists regardless of the internal rules of the Member State.
The CJEU ruling recognizes the right of residence of same-sex marriages in all Member States of the Union, irrespective of the domestic laws of the country concerned.
This cannot be interpreted as a recognition of the institution of same-sex marriage throughout the EU, since, as the judgment makes clear, “the Union respects the national identities of the Member States, which are inherent in their fundamental political and constitutional structures”.
However, the Court does impose an open interpretation of the concept of spouse – “which designates a person united to another person by marriage” – establishing it as gender-neutral, resulting, therefore, The express recognition, or lack thereof, of marriage between persons of the same gender by the Member State is irrelevant for the purpose of recognizing the right of residence. The judgment, therefore, is limited to guaranteeing the right of residence of same-sex marriages in any country of the European Union, arguing that, regardless of the internal recognition or non-recognition of such institution by domestic legislation, these rules “may not hinder freedom of residence”, a fundamental right that must be guaranteed and respected by all Member States.
The CJEU also clarifies that, when establishing restrictions on the free movement of persons, only “objective considerations of general interest” come into play, in accordance with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, which guarantees in Article 7 “respect for private and family life”.
This, citing case law of the European Court of Human Rights (ECHR), must be equally appreciated in the case of same-sex couples, for whom the concept of “private life” and “family life” may be included in the same way as that of a heterosexual couple in the same situation. If you need advice on any matter related to Family Law, Civil Law or Residence Law, do not hesitate to contact us and receive the best advice from our team of specialists in the field.
