Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne.

• Jurisdiction: European Union
• Celex Number: 62016CJ0673
• ECLI: ECLI:EU:C:2018:385
• Docket Number: C-673/16
• Court: Court of Justice (European Union)
• Date: 05 June 2018
• Procedure Type: Cuestión prejudicial - sobreseimiento

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

5 June 2018 (*)

(Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Right of Union citizens to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 3 — Beneficiaries — Family members of the Union citizen — Article 2(2)(a) — Definition of ‘spouse’ — Marriage between persons of the same sex — Article 7 — Right of residence for more than three months — Fundamental rights)

In Case C‑673/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea Constituţională (Constitutional Court, Romania), made by decision of 29 November 2016, received at the Court on 30 December 2016, in the proceedings

Relu Adrian Coman,

Robert Clabourn Hamilton,

Asociaţia Accept

v

Inspectoratul General pentru Imigrări,

Ministerul Afacerilor Interne,

intervener:

Consiliul Naţional pentru Combaterea Discriminării,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta, M. Ilešič (Rapporteur), J.L. da Cruz Vilaça, A. Rosas, C.G. Fernlund and C. Vajda, Presidents of Chambers, E. Juhász, A. Arabadjiev, M. Safjan, D. Šváby, M. Berger, E. Jarašiūnas and E. Regan, Judges,

Advocate General: M. Wathelet,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 21 November 2017,

after considering the observations submitted on behalf of:

– Mr Coman and Mr Hamilton, by R. Iordache and R. Wintemute, consilieri, and R.-I. Ionescu, avocată,

– Asociaţia Accept, by R. Iordache and R. Wintemute, consilieri, R.-I. Ionescu, avocat, and J.F. MacLennan, Solicitor,

– the Romanian Government, initially by R.-H. Radu, C.M. Florescu, E. Gane and R. Mangu, and subsequently by C.-R. Canţăr, C.M. Florescu, E. Gane and R. Mangu, acting as Agents,

– the Consiliul Naţional pentru Combaterea Discriminării, by C.F. Asztalos, M. Roşu and C. Vlad, acting as Agents,

– the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,

– the Hungarian Government, by M.Z. Fehér, G. Koós and M.M. Tátrai, acting as Agents,

– the Netherlands Government, by M.A.M. de Ree and M.K. Bulterman, acting as Agents,

– the Polish Government, by B. Majczyna, M. Kamejsza-Kozłowska and M. Szwarc, acting as Agents,

– the European Commission, by L. Nicolae, E. Montaguti and I.V. Rogalski, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 January 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(2)(a), Article 3(1) and (2)(a) and (b) and Article 7(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 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) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77; corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

2 The request has been made in proceedings between Mr Relu Adrian Coman, Mr. Robert Clabourn Hamilton and the Asociaţia Accept (together, ‘Coman and Others’), on the one hand, and the Inspectoratul General pentru Imigrări (General Inspectorate for Immigration, Romania, ‘the Inspectorate’) and the Ministerul Afacerilor Interne (Ministry of the Interior, Romania) on the other, in connection with a request concerning the conditions under which Mr Hamilton may be granted the right to reside in Romania for more than three months.

Legal context

European Union law

3 Recital 31 of Directive 2004/38 states as follows:

‘(31) This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation.’

4 Article 2 of that directive, entitled ‘Definitions’, provides, in paragraph 2(a) and (b):

‘For the purpose of this Directive:

…

(2) “family member” means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage, and in accordance with the conditions laid down in the relevant legislation of the host Member State;

…’

5 Article 3 of Directive 2004/38, entitled ‘Beneficiaries’, provides as follows:

‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

6 Article 7 of that directive, entitled ‘Right of residence for more than three months’, is worded as follows:

‘(1) All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.’

Romanian Law

7 Articles 259(1) and (2) of the Codul Civil (Civil Code) states as follows:

‘1. Marriage is the union freely consented to of a man and a woman, entered into in accordance with the conditions laid down by law.

2. Men and women shall have the right to marry with a view to founding a family.’

8 Article 227(1), (2) and (4) of the Civil Code is worded as follows:

‘1. Marriage between persons of the same sex shall be prohibited.

2. Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognised in Romania. …

4. The legal provisions relating to freedom of movement on Romanian territory by citizens of the Member States of the European Union and the European Economic Area shall be applicable.’

The dispute in the main proceedings and the questions...