Mr Coman, who held Romanian and American citizenship, and Mr Hamilton, an American citizen, met in New York in June 2002 and lived there together from May 2005 to May 2009. Mr Coman then took up residence in Brussels in order to work at the European Parliament as a parliamentary assistant, while Mr Hamilton continued to live in New York. They were married in Brussels on 5 November 2010. In March 2012, Mr Coman ceased to work at the Parliament but continued to live in Brussels, where he received unemployment benefit until January 2013. In December 2012, Mr Coman and Mr Hamilton contacted the Inspectorate to request information on the procedure and conditions under which Mr Hamilton, a non-EU national, in his capacity as member of Mr Coman’s family, could obtain the right to reside lawfully in Romania for more than three months. On 11 January 2013, in reply to that request, the Inspectorate informed Mr Coman and Mr Hamilton that the latter only had a right of residence for three months because, under the Civil Code, marriage between people of the same sex was not recognised, and that an extension of Mr Hamilton’s right of temporary residence in Romania could not be granted on grounds of family reunion.
On 28 October 2013, Coman and Others brought an action against the decision of the Inspectorate before the Judecătoria Sectorului 5 București (Court of First Instance, District 5, Bucharest, Romania) seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement in the European Union, and requesting that the Inspectorate be ordered to end the discrimination and to pay compensation for the non-material damage suffered.
In that dispute, they argued that Article 277(2) and (4) of the Civil Code was unconstitutional. Coman and Others maintained that failure to recognise, in connection with the exercise of the right of residence, marriages between persons of the same sex entered into abroad constituted infringement of the provisions of the Romanian Constitution that protect the right to personal life, family life and private life and the provisions relating to the principle of equality.
By order of 18 December 2015, the Judecătoria Sectorului 5 București (Court of First Instance, District 5, Bucharest) referred the matter to the Curtea Constituţională (Constitutional Court, Romania) for a ruling on that plea of unconstitutionality.
The Curtea Constituţională (Constitutional Court) decided to stay the proceedings and to refer a number of questions to the Court of Justice of the European Union for a preliminary ruling, including:
“(1) Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?
(2) If the answer [to the first question] is in the affirmative, do Articles 3(1) and 7() of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant the right of residence in its territory for a period of longer than three months to the same-sex spouse of a citizen of the European Union?”
The Court of Justice of the European Union held that in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) 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, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.
The Court of Justice of the European Union also held that Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those in these proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.
The Court of Justice of the European Union answered the questions referred by the Curtea Constituţională (Constitutional Court).