Photo by Dominik Krzymiński

In June 2018, the European Court of Justice delivered a precedent-setting judgment in which it confirmed the necessity to respect the rights of same-sex marriages based on EU law. The decision also applies to member states which do not accept same-sex unions, and this includes Poland, whose governments have long refused to regulate the situation of around one million people living in same-sex relationships. Now, Polish legislators can no longer bury their heads in the sand. Their passivity will sooner or later be confronted with a reaction from one of the European courts.

Adrian Coman and Claibourn Hamilton go to court

The judgment was made on June 5, 2018, in the case Coman et al. v. Romania. Immediately, it became a milestone in the struggle for same-sex relationship rights. Two gay men, Romanian citizen Adrian Coman and American citizen Claibourn Hamilton, met in 2002 and began living together in New York. In 2009, Coman moved to Belgium where he worked in the European Parliament. In 2010, he married Hamilton there, and in 2010 the couple decided to move to Romania, where they planned to settle indefinitely.

The spouses did realize that Romania – like Poland – does not regulate the legal situation of same-sex relationships. What is more, the Romanian Civil Code overtly prohibits same-sex marriages and does not recognize such unions contracted abroad.

Despite these facts, Coman and Hamilton were convinced that in accordance with EU legislation, their marriage should be recognized by Romania – at least with respect to their residing in that country. Importantly, the EU right of residence includes an EU citizen’s family member’s ability to travel and reside on a territory, regardless of the family member’s citizenship. Therefore, in theory, as the spouse of an EU citizen Hamilton should have automatically received the right of residence in Romania despite the lack of his own European citizenship.

Is a same-sex spouse a family member?

However, the Romanian immigration office denied this right to the couple. According to the officials, if Romania does not recognize same-sex marriages, it cannot treat Hamilton as a spouse, and thus Coman’s family member. The decision meant that Hamilton could reside on Romanian territory on terms that apply to all foreigners, that is for a period up to three months. Then, he could certainly try to prolong his stay citing another reason, for example permanent employment. Still, had Coman married an American woman, the couple would not have encountered similar obstacles.

The couple refused to accept the unequal treatment and submitted a complaint against the immigration office to court, asking for a judgment on discrimination based on sexual orientation with regards to free movement and residence in the EU. During the first instance proceedings in the case, the Romanian government was not sure how to interpret EU law, and addressed a legal question to the Romanian Constitutional Court. Yet, the higher court was also confused about the interpretation of relevant laws, and particularly the correct understanding of the definition of “spouse” (which is clearly stated in Directive 2004/38 of the European Commission). The dilemma stemmed from hesitation whether the definition applied to same-sex spouses. In order to settle the issue, Romania’s Constitutional Court addressed a so-called prejudicial question to the European Court of Justice, asking how EU law should be understood. The answer was key to the Romanian courts’ decision in Coman and Hamilton’s case.

The European Court of Justice’s ruling on same-sex marriage rights

In its judgment on June 5, 2018, the European Court of Justice decided in favor of Coman and Hamilton. The judges indicated that Romania should not have refused Hamilton the right to residence on the grounds that the country does not recognize same-sex marriage. This decision meant that the American citizen should have been entitled to residence in Romania for a period longer than three months. The basis of his entitlement was Hamilton’s acquiring of Coman’s family member status while Coman exercised his right to free movement by living in Belgium. Commenting on the judgment, Coman said: “We can now look in the eyes of any public official … across the EU with certainty that our relationship is equally valuable and equally relevant.”

The judgment has great symbolic importance as it confirms the willingness of the Luxembourg court to protect the rights of people in same-sex relationships. The change is significant because as late as 2001 (e.g. in the case D. and Sweden v. Council ) the ECJ stated that “according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex.”

The ruling also has substantial practical consequences at least for two reasons.

First, the ECJ decided that the definition of spouse included in Directive 2004/38 is uniform for all member states and neutral with regards to sex. This means that EU member states do not have the right to modify this definition independently in such a way that it corresponds to the shape of the institution in their domestic law. This is to prevent differences in the understanding of “marriage” in particular countries: those that allow same-sex marriages (such as Belgium) and those that do not (such as Romania).

Second, the ECJ excluded the possibility of restricting the rights of EU citizens by member states for people in situations parallel to that of Coman and Hamilton under the pretense of the supposed “protection of national identity” or “public order”. Theoretically, member countries are given such capacity in article 4 Title 1 of the Treaty on European Union. This article was cited during the proceedings by Latvian representatives who supported Romania’s position along with Poland and Hungary, arguing that “[in these countries] the maintenance of the institution of marriage as a relationship between a man and a woman” is permissible.

How to get EU protections for a same-sex marriage

In its written judgment, the ECJ clearly indicated the conditions met in this case, which determined an outcome favorable to Coman and Hamilton. This is significant for other people in similar situations (including Polish citizens) who might want to ask for similar protections in the future.

According to the judgment:

1. At least one spouse should be an EU citizen, but both should not be citizens of the same EU member state. If they were, they would not have to apply for right of residence in their home country because they could simply exercise it as citizens.

2. In order to exercise free movement and residence in the EU, an EU citizen should stay in the territory of a member state different from the one whose citizenship he or she has.

3. Staying in the territory of a member state different from the person’s home country needs to be genuine. Coman lived and worked on Belgian territory for three years before he decided to move to Romania with his husband. In previous decisions, the ECJ indicated that residence becomes genuine when it exceeds three months. This means that a Polish citizen who wished to visit a member state with his or her fiancé(e) for a very short period, just to get married, would not be able to ask for the same protections as Coman and Hamilton.

4. During the genuine residence of an EU citizen and his or her family member in a member state territory (different from the home country), their family life must be created or strengthened. While he was residing in Belgium, Coman entered a marriage with Hamilton, thus strengthening their family life.

5. The creation or strengthening of family life must have the form of marriage. Hamilton married Coman, thus acquiring the status of a family member according to Directive 2004/38. However, had they entered a civil union, they would not have been able to demand protections resulting from the right to free movement from the Romanian government. This is because, according to the Directive, the ability to acquire family member status based on a registered same-sex union is dependent on whether a given country recognizes the equivalence of a registered civil union and a marriage. Romania does not; had Coman and Hamilton been bound by a civil union, they might have encountered a refusal.

6. The marriage should be contracted in an EU member state. The ECJ’s repeated emphasis of that condition suggests that same-sex couples married outside the EU, e.g. in the USA or Canada, will not be able to benefit from such protections as Coman and Hamilton can.

What Coman et al. v. Romania means for same-sex couples in Poland

Although the decision was made in a case against Romania, it is directly binding for all member states, including Poland. From now on, this country must recognize same-sex marriages at least to the degree that Romania must recognize Coman and Hamilton’s union. Currently, the recognition is limited to the couple’s freedom of movement and residence. Therefore, if a Polish citizen entered a marriage under the same conditions as Coman and Hamilton, he or she would have the right to arrive in Poland with his or her spouse, and Poland would be obliged to award the spouse the right of residence for a period longer than three months. The change is substantial compared to the fact that Polish administrative bodies and courts have so far objected to recognizing any legal effects of same-sex unions (for example by refusing to transcribe foreign marriage licenses).

At the same time, the ruling in Coman et al. v. Romania does not entail an obligation to legalize same-sex marriage in Poland. Still, since 2005, Poland has been obliged to introduce the possibility of entering a same-sex union (in practice, this should be some form of a registered civil union). This obligation results from the recent rulings by the European Court of Human Rights in Strasbourg (i.e. the rulings in Oliari and others v. Italy from 2015 and Orlandi and others v. Italy from 2017). The Polish Parliament should pass a law introducing civil unions available for same-sex couples. Otherwise, Poland would risk a loss in the European Court of Human Rights (just as Italy did in Oliari’s case). Notably, complaints on Poland’s inaction were recently submitted to the ECHR by five same-sex couples as part of the initiative Koalicja na Rzecz Związków Partnerskich i Równości Małżeńskiej (Coalition for Civil Unions and Marriage Equality). The complaints are awaiting examination.

Currently, fourteen of twenty-eight EU member states allow same-sex marriage. A further eight allow civil unions in various forms. Only six EU member states: Bulgaria, Lithuania, Latvia, Poland, Romania and Slovakia do not allow any possibility of formalizing a same-sex union. These are the countries which will feel the consequences of the ECJ and ECHR sentences most strongly.

An invitation to fight for more same-sex rights

It could seem that the change introduced by the Coman-Hamilton ruling is relatively minor and restricted to certain special cases. From now on, member countries must recognize same-sex marriages solely with regards to the spouses’ freedom of movement and residence. However, the states are not obliged to accept such marriages nor provide them with legal protections in areas not covered by EU regulations, e.g. taxation, inheritance or property rights. Such artificial compartmentalizing of legal protections does not seem serious. Still, the strategy of “let’s give what we are forced to and nothing more” will likely be used by those member states that do not want to introduce same-sex unions or marriages. After all, this was the immediate reaction of the Romanian Constitutional Court to the ECJ’s ruling: it confirmed that the new protections are afforded to the married couple solely to the extent defined by the ECJ.

Some new legal issues are looming on the horizon – ones that in the near future could push the limits of legal protections for same-sex marriages even further. For example, Directive 2004/38 has introduced the topics of EU citizens’ family members’ eligibility for social aid and financial assistance for students, including during professional formation, such as scholarships or student loans. Theoretically, it cannot be ruled out that Hamilton might like to eventually receive this kind of support from Romania. As Coman’s family member, exercising his right to legal protections awarded to him by the EU, he would be entitled to it. Some commentators of the Coman case go as far as to suggest that if a member state makes it difficult for same-sex married couples to access rights guaranteed by domestic law to opposite-sex couples, it would infringe on the same-sex couples’ residence rights, and thus enable the ECJ to consider it an EU law violation.

Paradoxically, then, a case pertinent to a completely different EU member state has put a foot in the door for marriage equality in Poland. Further rulings in the European Court of Justice might help open this door wider – although it should have long been opened wide from the inside.

Translated from the Polish by Aleksandra Paszkowska