Almost three years after a European Court ruled that Romania must recognise a same-sex couple under EU freedom of movement legislation, its government is yet to implement the judgement.
In June 2018, the Court of Justice of the European Union (CJEU) issued a landmark judgement ruling that EU countries must recognise the immigration rights of same-sex spouses under EU freedom of movement laws, regardless of whether same-sex marriage is legal in the respective EU country.
Almost three years later, Romania has still not respected the judgement by granting the male spouse of a Romanian man a residence permit.
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Together with the Romanian LGBTI oganisation ACCEPT, the couple, Adrian Coman and his American husband Clai Hamilton, have now taken the case to the European Court of Human Rights (ECHR) to address this failure to implement the CJEU judgement and finally have their rights recognised.
In the ground-breaking judgment delivered in 2018, the CJEU clarified that the term ‘spouse’ in the EU Freedom of Movement Directive includes same-sex spouses, and that Romanian authorities must ensure that EU law is implemented equally and duly, without discrimination based on sexual orientation.
In practice this means that Romania must recognise same-sex partnerships from other EU countries, and therefore needs to grant a residence permit to Mr Hamilton, and others in similar situations.
Right to family life
In line with the CJEU judgment, the right to family life of same-sex couples was reaffirmed by Romania’s Constitutional Court in July 2018, yet Romania continues to refuse to acknowledge the judgments and provide the residence permit.
ACCEPT has brought this to the European Commission’s attention by submitting a complaint about a second case, similar to Coman. However, an official answer from the Commission says that in order to start infringement procedures, it would have to establish a “general and consistent” non-application of EU legislation, which according to the Commission is not clearly established in the case of Romania.
“We rely on the European Commission to ensure that member states correctly implement hard-won rights, like those enshrined by the Coman judgement,” says Teodora Ion Rotaru of ACCEPT Romania.
“The CJUE was adamant that rights pertaining to the protection of rainbow families need to be applicable in practice, and the role of European institutions is even more important when national governments and legislatures fail to protect the rights of European citizens. Even if we now rely on the European Court of Human Rights to enforce EU law in Romania, we trust that the European Commission will step in and ensure that its role as the guardian of the treaties is fulfilled by engaging in a productive dialogue with Romanian authorities.”
Arpi Avetisyan, the head of litigation at ILGA-Europe, a federation of organisations campaigning for lesbian, gay, bisexual, trans and intersex human rights, says that the Coman judgment brought a long-awaited clarification on the term ‘spouse’ and established that same-sex spouses enjoy the freedom of movement on equal footing across the EU.
“Yet the applicants themselves continue to suffer and are unable to exercise their rights, due to blatant violations by the Romanian government of its obligations under EU law. CJEU judgments are part of EU law, which has supremacy over national law and must be applied to all national acts,” she says.
“It is a very welcome step that the European Court moved ahead with the consideration of the case in a timely manner. We hope that the European Commission will join the efforts to ensure that not only the applicants themselves, but other same-sex couples in a similar situation will finally see their freedom of movement and family rights protected.”
European Commission could do more
However, Katrin Hugendubel, advocacy director with ILGA-Europe, says that she is “very disappointed” by the fact that the Commission is not acting strongly on ensuring that Romania is fully respecting the Coman judgement.
“It is hard to see how continuing to ignore such a public and landmark judgement three years later does not point to a systematic refusal to apply the principle of non-discrimination clearly established by the CJEU. It is a sad day for the EU that the couple now is turning the ECHR to find justice,” she says.
Coman and Hamilton married in Belgium in 2010, and when they returned to Romania, they expected Mr Hamilton to gain automatic residency rights based on their Belgian marriage certificate.
Romania, however, does not recognise same-sex marriages, including those concluded abroad. As the couple’s request contradicted Romania’s Civil Code, the Romanian constitutional court referred the case to the ECJ, which eventually ruled that Mr Hamilton should be granted residency based on his marriage to Mr Coman, but that Romania would not be under any obligation to recognise the marriage per se.
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