Photo © Riccardo Piccinini – Fotolia
(LUXEMBOURG) – While EU Member States have the freedom to decide whether to legalise same-sex marriages, they have no right to deny residence rights to spouses of the same sex, the EU’s top court ruled Tuesday.
In its ruling, the European Court of Justice ruled that Romania cannot obstruct the freedom of residence of an EU citizen by refusing to grant a same-sex spouse from a non-EU Member State, a derived right of residence in their territory.
The case concerned a Romanian national Relu Adrian Coman and an American, Robert Clabourn Hamilton, who lived together in the United States for four years before getting married in Brussels in 2010.
In December 2012, Mr Coman and his husband contacted the Romanian authorities to request information on the procedure and conditions under which Mr Hamilton, in his capacity as a member of Mr Coman’s family, could obtain the right to reside lawfully in Romania for more than three months.
The request was based on the directive on the exercise of freedom of movement, which allows the spouse of an EU citizen who has exercised that freedom to join his husband in the Member State in which the husband is living.
Romanian authorities said Mr Hamilton only had a right of residence for three months, saying he could not be classified in Romania as a ‘spouse’ of an EU citizen as that Member State does not recognise marriage between persons of the same sex (‘homosexual marriage’).
The couple took action before the Romanian courts seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement within the EU.
Romania thereafter asked the EU Court of Justice whether Mr Hamilton may be regarded as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement, and must therefore be granted a permanent right of residence in Romania.
The Court of Justice ruled first of all, that the directive on the exercise of freedom of movement governs only the conditions determining whether an EU citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on nationals of a non-EU State who are family members of an EU citizen in the Member State of which that citizen is a national.
It therefore cannot confer a derived right of residence on Mr Hamilton in the Member State of which Mr Coman is a national, namely Romania. The Court observed that, in certain cases, nationals of non-EU states, family members of an EU citizen, who are not eligible, on the basis of the directive, for a derived right of residence in the Member State of which that citizen is a national, could be accorded such a right on the basis of Article 21(1) of the Treaty on the Functioning of the EU (a provision which confers directly on EU citizens the primary and individual right to move and reside freely within the territory of the Member States).
The Court went on to state that the conditions under which such a derived right of residence may be granted must not be stricter than those laid down by the directive for the grant of a derived right of residence to a national of a non-EU state who is a family member of an EU citizen having exercised his right of freedom of movement by settling in a Member State other than that of which he is a national. The directive must be applied, by analogy, to that situation.
The Court noted that, in the directive on the exercise of freedom of movement the term ‘spouse’, which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen. Nevertheless, the Court stated that a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States, and EU law does not detract from that competence, the Member States being free to decide whether or not to allow homosexual marriage. The Court also observed that the EU respects the national identity of the Member States, inherent in their fundamental structures, both political and constitutional.
The Court nonetheless considered that the refusal by a Member State to recognise, for the sole purpose of granting a derived right of residence to a national of a non-EU state, the marriage of that national to an EU citizen of the same sex lawfully concluded in another Member State may interfere with the exercise of that citizen’s right to move and reside freely within the territory of the Member States. That could have the effect that freedom of movement from one Member State to another would vary depending on whether or not provisions of national law allow marriage between persons of the same sex.
That said, the Court noted that freedom of movement for persons may be subject to restrictions independently of the nationality of the persons concerned, if the restrictions are based on objective public-interest considerations and are proportionate to a legitimate objective pursued by national law.
In that regard, public policy, which is put forward in the present case as justification for restricting the right to freedom of movement, must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions.
The obligation for an EU Member State to recognise a homosexual marriage concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a national of a non-EU state, does not undermine the institution of marriage in the first Member State.
In particular, that obligation does not require that Member State to provide, in its national law, for the institution of homosexual marriage. Moreover, an obligation to recognise such marriages, for the sole purpose of granting a derived right of residence to a national of a non-EU state, does not undermine the national identity or pose a threat to the public policy of the Member State concerned.
Lastly, the Court observed that a national measure that is liable to obstruct the exercise of freedom of movement for persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. The fundamental right to respect for family and private life being guaranteed by Article 7 of the Charter, the Court notes that it is also apparent from the case-law of the European Court of Human Rights that the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as a relationship of a heterosexual couple in the same situation.
