''Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne'' is a 2018 case of the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...

(ECJ) that affirmed residency rights in EU countries (that do not recognise same-sex unions), to the spouse of an EU citizen who is exercising their right to freedom of movement and if the marriage was legally performed in an EU member state. , Romania has yet to implement the verdict by granting Coman's partner a residence permit. On 14 September 2021 the

European Parliament The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...

passed a resolution calling on the

European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...

to ensure that the ruling is respected across the EU.

EU law

Article 21

TFEU The Treaty on the Functioning of the European Union (TFEU) is one of two treaties forming the constitutional basis of the European Union (EU), the other being the Treaty on European Union (TEU). It was previously known as the Treaty Establishi ...

defines that "every citizen of the Union shall have the right to move and reside freely within the territory of the

Member States A member state is a state that is a member of an international organization or of a federation or confederation. Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign states ...

Directive 2004/38/EC Directive may refer to: * Directive (European Union), a legislative act of the European Union * Directive (programming), a computer language construct that specifies how a compiler should process input * "Directive" (poem), a poem by Robert Frost ...

(the Citizens’ Rights Directive or Free Movement Directive) defines this right. It grants the same freedom to family members of Union citizens (including spouses), even if they are not nationals of an EU member state. "Family members" (Article 2(2)) include the spouse, the registered partner, a child under 21, or a dependent child or parent (of the Union citizen or partner). There is a second category of "any other family member", which can be included at the discretion of national legislation. The

Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaim ...

affirms the freedom of movement and of residence (Article 45) and furthermore guarantees the right to respect for private and family life (Article 7), guarantees the right to marry (Article 9) and prohibits discrimination based on, among other grounds, sex and sexual orientation (Article 21).

Case background

In 2010, Adrian Coman, a

Romania Romania ( ; ro, România ) is a country located at the crossroads of Central Europe, Central, Eastern Europe, Eastern, and Southeast Europe, Southeastern Europe. It borders Bulgaria to the south, Ukraine to the north, Hungary to the west, S ...

n national and thus EU citizen, married Claibourn Robert Hamilton, a citizen of the United States, in

Belgium Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...

, an EU member state where same-sex marriage is legal. The Civil Code of Coman's home country Romania prohibits same-sex marriage and does not recognise same-sex marriages performed abroad. On these grounds, the Romanian immigration authorities denied a residence permit for his spouse when the couple wanted to move back after living in the United States. They challenged the decision before the Court of First Instance in

Bucharest Bucharest ( , ; ro, București ) is the capital and largest city of Romania, as well as its cultural, industrial, and financial centre. It is located in the southeast of the country, on the banks of the Dâmbovița River, less than north of ...

, which referred the case to the

Constitutional Court of Romania The Constitutional Court of Romania ( ro, Curtea Constituțională a României) is the institution which rules on whether the laws, decrees or other bills enacted by Romanian authorities are in conformity with the Constitution of Romania, Constitu ...

, which in turn asked for a

preliminary ruling A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law that is given in response to a request (preliminary reference) from a court or a tribunal of a member state. A preliminary rulin ...

from the European Court of Justice. The European Commission and the Netherlands intervened on behalf of the applicants, while Latvia, Poland, and Hungary filed briefs supporting Romania's position. Advocate-General

Melchior Wathelet Melchior H. M. J. F. C. Wathelet (born 6 March 1949) is a Belgian politician and member of the Humanist Democratic Centre who served as 4th Minister-President of Wallonia. He has degrees in law and in economics (University of Liège) and is a M ...

issued a legal opinion supporting the applicants.

Preliminary questions

The questions referred by the Constitutional Court of Romania to the European Court of Justice on 29 November 2016 were:

Ruling

A hearing was held on 21 November 2017. The Advocate General

delivered his opinion on 11 January 2018. The Court followed the opinion and ruled as follows in Grand Chamber on 5 June 2018:

Reception

According to law professors

Dimitry Kochenov Dimitry Vladimirovich Kochenov is a professor of legal studies at the Central European University. Career Before returning to CEU, Dimitry Vladimirovich was a professor at the University of Groningen. The Economist, FT, NYT, BBC, CBC, NBC, Le Mond ...

and Uladzislau Belavusau, the ruling against Romania was anticipated by legal experts, as "The outcome was mandated by the language of the relevant legal provisions since their inception". Kochenov and Belavusau also state that "''Coman'' is among the best-founded decisions of the Court in its history from the viewpoints of

legal certainty Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. The legal system needs to permit those subject to the law to regulate their condu ...

and the articulation of the letter and the spirit of the law." They note that, in light of

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...

rulings in ''

Oliari and Others v. Italy ''Oliari and Others v. Italy'' (Application nos. 18766/11 and 36030/11) is a case decided in 2015 by the European Court of Human Rights (ECtHR) in which the Court established a positive obligation upon member states to provide legal recognition f ...

'' (in which Italy was required to provide some form of legal recognition to same-sex couples) and '' Pajić v. Croatia'' (in which Croatia was required to grant residency rights to a Bosnian citizen in a same-sex relationship with a Croatian citizen), "if only Romania was a state compliant with ECHR law, no recourse to EU law would be necessary at all in this case".

EU law

Case background

Preliminary questions

Ruling

Reception

See also

References

Further reading