In their first scientific report, the Network of European LGBTQ* families Associations (NELFA) analysed the ‘Coman case’ before the European Court of Justice in Luxembourg, which had ended with a landmark ruling in early June 2018.
The Court ruled that the term “spouse” in the EU Directive 2004/38 (freedom of movement) includes married same-sex couples. This means that in free movement situations, the Union citizen can rely on EU law to require the Member State to which (s)he moves to admit within its territory his/her same-sex spouse and grant him/her a right of residence, irrespective of whether that Member State has opened marriage to same-sex couples within its territory.
The case involved a married same-sex couple – Mr Relu Adrian Coman (a dual Romanian-US national) and Mr Robert Clabourn Hamilton (a US national) – who wished to settle permanently in Romania together, relying on the family reunification rights that Mr Coman enjoys under EU free movement law. The couple married in Brussels in 2010. In 2012 the issue that led to the case emerged when they contacted the General Inspectorate for Immigration, Romania, to enquire whether Mr Hamilton – in his capacity as the spouse of Mr Coman – could obtain the right to reside lawfully in Romania for more than three months, on the basis of Directive 2004/38. Directive 2004/38 provides that the “family members” of a Union citizen who are not nationals of an EU Member State and who accompany or join the Union citizen in the host Member State, shall have the right of residence there for a period of longer than three months. For the purposes of the Directive, “family member” means, inter alia, “the spouse” of a Union citizen.
The Romanian authorities replied that Mr Hamilton did not have the right to reside lawfully in Romania for more than three months as, under Romanian law, he was not recognised as the spouse of Mr Coman and marriages between persons of the same sex entered into or contracted abroad shall not be recognised in Romania. As a result of that, Mr Coman, Mr Hamilton, and the Romanian LGBT organisation Asociaţia Accept, brought an action against the decision of the Inspectorate, seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the EU right of freedom of movement. The first instance court hearing the case referred the matter to the Romanian Constitutional Court which, in its turn, decided to stay the proceedings and make a reference for a preliminary ruling to the ECJ asking, essentially, whether a Union citizen who has exercised free movement rights can enjoy, with his same-sex spouse, family reunification rights under EU law.
The author of the report Prof. Alina Tryfonidou (University of Reading) deals with the positive outcome of the judgment for rainbow families but also points out some important limitations. NELFA-President Dominique Boren says, “The new report highlights that EU countries can under no circumstances impose unjustified obstacles to free movement of LGB Union citizens married to a person of the same sex. Member States are obliged to ensure the continuation of the legal familial ties as these have already been established in another EU country. Unfortunately, the Coman judgment is no saviour. Certain gaps remain and reality shows that rainbow families still face a wide range of problems when crossing EU borders, in particular with regard to parental rights. That’s why we urge the EU institutions to close existing loopholes which undermine our lives!”.
For more information, go to the NELFA website.
Future events include NELFA annual general meeting in Helsinki (8-10 March) and Rainbow Families Conference in Zagreb (10-12 May)