Coman and Others v General Inspectorate for Immigration and Ministry of the Interior


Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne is a 2018 case of the European Court of Justice that affirmed residency rights to same-sex couples in EU countries that do not recognise same-sex unions, if at least one partner is an EU citizen and if the marriage was legally performed in an EU member state.

EU law

Article 21 TFEU defines that "every citizen of the Union shall have the right to move and reside freely within the territory of the Member States."
Directive 2004/38/EC defines this right. It grants the same freedom to family members of Union citizens, even if they are not nationals of an EU member state. "Family members" include the spouse, the registered partner, a child under 21, or a dependent child or parent. 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 affirms the freedom of movement and of residence and furthermore guarantees the right to respect for private and family life, guarantees the right to marry and prohibits discrimination based on, among other grounds, sex and sexual orientation.

Case background

In 2010, Adrian Coman, a Romanian national and thus EU citizen, married Claibourn Robert Hamilton, a citizen of the United States, in Belgium, 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, which referred the case to the Constitutional Court of Romania, which in turn asked for a preliminary ruling from the European Court of Justice.

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