DECISION IN CASE C-673/16 Relu Adrian COMAN AND OTHERS/ GENERAL INSPECTORATE FOR IMMIGRATION

Mr. Relu Adrian Coman, a Romanian national, and Mr. Robert Clabourn Hamilton, an American national, married in Brussels in 2010. The Romanian-American homosexual couple: Relu Adrian Coman, Romanian citizen, and Robert Clabourn Hamilton, American citizen legally married in Belgium, requested the Romanian authorities (namely the General Inspectorate for Immigration (Romania) and the Ministry of Home Affairs (Romania)) in December to be informed of the procedure and conditions under which Mr. Hamilton could, as a member of Mr. Coman's family, or as a spouse who is not a national of an EU Member State, obtain the right to live legally in Romania for more than three months. In January 2013, the Immigration General Inspectorate transmitted to Mr. Robert Clabourn Hamilton in writing the refusal to grant the right to have a stable residence in Romania even though he is married to a Romanian (European) citizen, Mr. Relu Adrian Coman. On October 5, 2013, as petitioners Relu Adrian Coman, Robert Clabourn Hamilton, the Accept Association files an action against the respondents General Inspectorate for Immigration, the Ministry of Home Affairs and the National Council for Combating Discrimination, a declaratory action in the Court of District 5, Bucharest. By the authentication ruled in File no. 17111/302/2015 at the hearing on 18.12.2015, the District Court of District 5, Panel C-17 Civil, Bucharest, notified the Constitutional Court with the exception of the unconstitutionality of the provisions of art. 277 paragraphs 2 and 4 of the Civil Code related to art. 4, art. 16 and art. 26 of the Romanian Constitution, exception raised by the petitioners Relu Adrian Coman, Robert Clabourn Hamilton and the ACCEPT Association In November 2016, the RCC decided to send preliminary questions to the CJEU in file 78D / 2016 . Thus, the RCC decided to suspend the judgment of the case having as object the exception of unconstitutionality of the provisions of the Romanian Civil Code and asked the Court of Justice of the European Union to give a preliminary ruling. According to Advocate General Wathelet, the concept of 'spouse' includes, in the light of the freedom of residence of Union citizens and members of their families, same-sex spouses. Although Member States are free to authorize or not to authorize same-sex marriage, they may not impede the freedom of residence of a citizen of the Union by refusing to grant his/her same-sex spouse, a third-country national, a right of permanent residence on their territory." The Court of Justice of the European Union (Grand Chamber) delivered its judgment in Case C-673/16, Relu Adrian Coman and Others. c to the General Inspectorate for Immigration and the Ministry of Home Affairs on June 5, 2018. The Court of Justice of the European Union declares that "In a situation where a Union citizen has made use of his / her freedom of movement by moving and actually living under the conditions laid down in Article 7 (1) of Directive 2004/38/EC of the European Parliament and of the Council of April 29, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) (EEC) no. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/90/365/EEC and 93/96/EEC in a Member State other than that the nationality of which he/she holds, or has, on that occasion founded or strengthened a family life with a third-country national of the same sex to whom he/she is linked by a legal marriage concluded in the host Member State, Article 21 (1) TFEU must be interpreted within the meaning that it is opposed for the competent authorities of the Member State the citizenship of which the citizen of the Union has to refuse to grant a right of residence on the territory of that Member State to that national on the ground that the law of that Member State does not provide for the same-sex marriage. Article 21 (1) TFEU must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a third-country national of the same sex as the citizen of the Union whose marriage to the latter was concluded in a Member State has the right to reside for more than three months on the territory of the Member State of which the Union citizen is a national. This secondary right of residence may not be subject to more stringent conditions than those laid down in Article 7 of Directive 2004/38."