Decision no. 534 of July 18, 2018 regarding the exception of unconstitutionality of the provisions of art. 277 para. (2) and (4) of the Civil Code; Constitutional Court file nr.78D/2016

Articles 7, 9, 21 and 45 of the Charter

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).

Judgement of the Court (Grand Chamber), 5 June 2018 , in Case C 673/16, request for a preliminary ruling under Article 267 TFEU from the Constitutional Court, Romania, made by decision of 29 November 2016, received at the Court on 30 December 2016, in the proceedings.

YES.

By means of the Conclusion on November 29 2016, the Constitutional Court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

“(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([2]) 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?

(3)      If the answer to [the first question] is in the negative, can the same-sex spouse, from a State which is not a Member State of the Union, of the Union citizen to whom he or she is lawfully married, in accordance with the law of a Member State other than the host State, be classified as “any other family member” within the meaning of Article 3(2)(a) of Directive 2004/38 or a “partner with whom the Union citizen has a durable relationship, duly attested”, within the meaning of Article 3(2)(b) of that directive, with the corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if that State does not recognise marriages between persons of the same sex and provides no alternative form of legal recognition, such as registered partnership?

(4)      If the answer to [the third question] is in the affirmative, do Articles 3(2) and 7(2) 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 Union citizen?”

By the Judgment of June 5, 2018, pronounced in Case C-673/16, the Court of Justice of the European Union (Grand Chamber) answered affirmatively to the first two questions posed. 

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.
Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main 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 Constitutional Court held that in this case the non-recognition of marriages between persons of the same sex, concluded abroad, is criticized from the perspective of the Romanian authorities' refusal to grant the same legal regime to the partner of the same sex, from a marriage concluded in a member state of the European Union regarding the right of residence on the territory of Romania, granted to the partners of a marriage concluded between a man and a woman.

The Constitutional Court also held that this case strictly refers to the recognition of the effects of a marriage legally concluded abroad between a citizen of the European Union and their same sex spouse, a citizen of a third country, in relation to the right to family life and the right to free movement, from the perspective of the prohibition of discrimination based on sexual orientation. 

In this context, the Court held that some notions used by Directive 2004/38 of the European Parliament and of the Council of April 29, 2004, in conjunction with the Charter of Fundamental Rights of the European Union and with the recent jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights, regarding the right to a family life are not clear.
The Constitutional Court of Romania decided to suspend the trial of the case having as object the exception of the unconstitutionality of the provisions of the Romanian Civil Code and to request the Court of Justice of the European Union to issue a preliminary ruling. By the Conclusion of November 29, 2016, the Constitutional Court addressed the following preliminary questions to the European Court: 
By the Conclusion on November 29, 2016, the Constitutional Court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

“(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([2]) 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?

(3)      If the answer to [the first question] is in the negative, can the same-sex spouse, from a State which is not a Member State of the Union, of the Union citizen to whom he or she is lawfully married, in accordance with the law of a Member State other than the host State, be classified as “any other family member” within the meaning of Article 3(2)(a) of Directive 2004/38 or a “partner with whom the Union citizen has a durable relationship, duly attested”, within the meaning of Article 3(2)(b) of that directive, with the corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if that State does not recognise marriages between persons of the same sex and provides no alternative form of legal recognition, such as registered partnership?

(4)      If the answer to [the third question] is in the affirmative, do Articles 3(2) and 7(2) 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 Union citizen?”

By the Judgment of June 5, 2018, pronounced in Case C-673/16, the Court of Justice of the European Union (Grand Chamber) answered the first two questions in the affirmative. 

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.

Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main 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.

Starting from those provided by the decision of the CJEU, the Constitutional Court found that the rules of European law contained in Article 21 paragraph (1) TFEU and in Article 7 paragraph (2) of Directive 2004/38, have both a precise and unequivocal meaning, established clearly by the Court of Justice of the European Union, as well as constitutional relevance, as it concerns a fundamental right, namely the right to intimate, family and private life. 

The Constitutional Court found that the relationship of a same-sex couple falls within the scope of the notion of "private life" as well as the notion of "family life", like the relationship established in a heterosexual couple, a fact that determines the incidence of the protection of the fundamental right to private and family life, guaranteed by art. 7 of the Charter of Fundamental Rights of the European Union, art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and art. 26 of the Romanian Constitution. 

People of the same sex, who form stable couples, have the right to a legal and judicial recognition of the corresponding rights and duties, therefore, the Court found that the provisions of art. 277 para.(2) of the Civil Code, cannot constitute the basis for the competent authorities of the Romanian state to refuse to grant the right of residence, on the territory of Romania, in situations such as the analyzed case. 

The Constitutional Court admitted the exception of unconstitutionality and found that the provisions of art. 277 paragraphs (2) and (4) of the Civil Code are constitutional only to the extent that they allow the granting of the right of residence on the territory of the Romanian state, to spouses — citizens of the member states of the European Union and/or citizens of third countries — from marriages between persons of the same sex, concluded or contracted in a member state of the European Union. The decision is final and generally binding.

The case of Buhuceanu and others v. Romania, app. no. 20081/19 and 20 others, decided by the ECHR on May 23, 2023, resumes at another level the judicial dialogue related to the right to private life of same-sex couples in Romania.
The ECHR decision recognizes that there is no form of legal recognition and protection of same-sex couples, that Romania violates art. 8 of the ECHR regarding private life and family life.
The government defended itself by saying that the majority of Romanians do not agree with same-sex unions. 
The Court rejected such arguments in other decisions, concluding that the allegedly negative, or even hostile, attitude of a part of the heterosexual majority cannot be invoked against the claimants' interest that their respective relationships be adequately recognized and protected by law. The Court held that the margin of appreciation of the states parties is significantly reduced regarding the possibility of their legal recognition and protection. States have a wider margin of appreciation when determining the exact nature of the legal regime for same-sex couples. In the latter context, the social and cultural background of Romania can be taken into consideration. The Court found that Romania exceeded its margin of appreciation and did not fulfil its positive obligation to guarantee their right to respect for their private and family life.

1. CJUE - Judgment of the Court (Grand Chamber), 5 June 2018 (*), in Case C 673/16, request for a preliminary ruling under Article 267 TFEU from the Constitutional Court, Romania, made by decision of 29 November 2016, received at the Court on 30 December 2016, in the proceedings
2. Decision nr.534 on July 18, 2018 regarding the exception of unconstitutionality of the provisions of art.277 par. (2) and (4) of the Civil Code