(Blogmensgo, gay blog of June 11, 2018) No Member State of the European Union can deny a European citizen the permanent right of residence for his same-sex spouse, even if his spouse’s nationality is outside the EU – and this even applies if the country in question prohibits homosexual marriages. This was decided by the Court of Justice of the European Union (ECJ) in its judgment of 5 June 2018 at the request of a Romanian-American gay couple and the Romanian association Accept in proceedings against the Romanian General Inspectorate for Immigration and the Romanian Ministry of the Interior.
A decisive judgment
In addition to the usual Community legislation on the free movement of persons, the ECJ bases its arguments in particular on two elements of the Directive of 29 April 2004.
One of these elements defines a “family member” as the spouse or “the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage, and in accordance with the conditions laid down in the relevant legislation of the host Member State.”
The other element prohibits discrimination, particularly in relation to sexual orientation.
In paragraph 21, the ECJ initially concedes that “… Directive 2004/38 […] cannot confer a derived right of residence on Mr Hamilton“, but immediately states that he “could, nevertheless, be accorded such a right.” In the present case, paragraph 24 of the judgment states that “that citizen’s family life in that Member State [Belgium] may continue when he returns to the Member State of which he is a national [Romania].”
The Court also finds that the term “spouse” is gender-neutral and “may therefore cover the same-sex spouse of the Union citizen concerned” (paragraph 35). In view of various homophobic national characteristics (in this case the governments of Latvia, Hungary and Poland have testified in favor of Romania), the ECJ notes that “an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national does not undermine the national identity or pose a threat to the public policy of the Member State concerned.” In other words, such a special case does not endanger the general situation at all.
The ECJ therefore concludes (paragraph 51) that…
[…] “in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38, in a Member State other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.”
This was the first conclusion of the ECJ. In short, the refusal of a European State to recognize a same-sex marriage legally entered into in another European State is not admissible.
The second conclusion is the same: a Member State of the European Union may not restrict the right to a long-term residency (over three months) on the grounds that the spouse is of the same sex as the national of the host country.
After several years as a married couple in New York, a Romanian-American citizen (R. A. Coman) and an American citizen (R. C. Hamilton) were married in Brussels on 5 November 2010. Since 2012, the Romanian Immigration Service has refused the US citizen a visa for staying longer than three months in Romania on the basis of family reunification on the grounds that the US spouse cannot be considered part of the Romanian citizen’s family because the Romanian Civil Code does not recognize same-sex marriage.
The couple filed suit, and in the first instance the court asked the Constitutional Court (Curtea Constituţională) for a preliminary opinion. That court turned to the ECJ in December 2016 for a preliminary opinion (i.e. an external opinion before the decision). In particular, the Romanian Supreme Court asked which definition applied to the word “spouse” and whether the non-European nationality of the spouse played a role here.
The judgment of the ECJ must be implemented by the Romanian Constitutional Court and its conclusions forwarded to the Court of First Instance so that the case can be finally decided.
Romania refuses to legalize gay marriage and has not yet introduced registered partnerships for same-sex couples. On the other hand, several unsuccessful attempts were made to change the constitution and define marriage as the union of a man and a woman. In Belgium, however, same-sex marriage is perfectly legal.
Comment: The ECJ has taken a very wise decision. Its argument is that the recognition of a visa for a gay couple in a country that does not recognize homosexual partners is legal, but so is national legislation that prohibits homosexual partnerships.
In the end this means that the rarity of such visa applications in this context should not disturb a country, no matter how homophobic it may be. Strictly speaking, this means that homophobia can go hand in hand with homosexuality and vice versa.
What is questionable in the end, however, is whether such compensatory but unambiguous judgments are satisfactory for the parties ultimately.
Bucharest shines under the rainbow
Update of June 12, 2018. The 14th Gay Pride in the Romanian capital Bucharest on June 9, 2018 was strengthened by the recent judgment of the European Court of Justice (ECJ) and the presence of the now well-known gay couple. Relu Adrian Coman and his American husband Robert Claibourn Hamilton participated in the parade, together with an estimated 3,000 to 10,000 LGBT people and several well-known Romanian and foreign personalities.
Adrian and Claibourn have had a relationship for 16 years, one year after the decriminalization of homosexuality in Romania. They enjoyed posing for countless selfies for people who wanted to immortalize this event, as shown in this short Euronews report in French below.
Paul Brummell and Cord Meier-Klodt, Ambassadors of the United Kingdom and Germany, opened the parade together with Angela Cristea, Head of the European Commission Representation in Romania.
The parade turned the central Victory Avenue (Calea Victoriei) into a festive rainbow route. Although the Romanian society is quite homophobic, this new route stands in contrast to the closed space of the former Gay Prides and suggests a perhaps more tolerant society than before.
Here is a short report by Euronews in German:
Nevertheless, this beautiful new world was accompanied by a massive police presence to prevent problems with counter-demonstrators.
At the same time, a counterdemonstration took place – people who wanted to hold on to their “normality,” were inspired by Orthodox Christianity or wanted to vote for a referendum intended to define marriage only for two people of different sexes. The counterdemonstration was not banned because it had been organized by the ruling Social Democratic Party (PSD).
Here is another short report from Euronews, this time in English:
Incidentally, Petre-Florin Manole, a young member of the PSD, is fighting against such a referendum and for the introduction of same-sex partnership in Romania as fast as possible.
For those who want to see a little more, here is a Romanian report in original language. It shows the now famous American-Romanian couple with many people taking selfies. Let us hope that next year the Gay Pride in Bucharest will be even bigger and more festive – hopefully to celebrate legalization of homosexual marriage by then?
Frank-S / MensGo