White & Case Wins Landmark EU Court of Justice Ruling on Free Movement Rights for Same-Sex Spouses

3 min read

Financial Times' FT Innovative Lawyers Europe 2018 awarded White & Case first place and a 'Standout' ranking in the Rule of Law and Access to Justice category for our work protecting the rights of same-sex spouses to move freely in Europe. We were also awarded The Good Lobby's '2018 Best Collaboration of the Year' Award for our collaboration with Romanian NGO ACCEPT on this case.

Global law firm White & Case LLP has won a landmark ruling, which gives same-sex spouses equal free movement rights in the EU, after the Grand Chamber of the EU's Court of Justice held that the term 'spouse' includes spouses of the same sex for the purpose of EU free movement and residence rights.

"This is the first time that the Court of Justice has had an opportunity to rule on this matter, and it is a milestone on the road to full equality for same sex families across Europe," said Brussels-based White & Case partner Jacquelyn MacLennan, the Firm's Global Pro Bono Practice Leader. MacLennan with support from Brussels associates Florence Humblet and Pierre Pecheux, provided pro bono advice to Adrian Coman, Clai Hamilton and Romanian NGO ACCEPT in their case before the Court of Justice.

The case concerns Romanian national, Coman, who married his long-term partner, US citizen Clai Hamilton, in Brussels in 2010. Coman wanted to return to Romania, but Romanian authorities refused to issue him with the necessary documents in order to enable him to work and reside there permanently with his spouse. The EU's free movement directive permits EU citizens exercising their free movement rights to bring their spouses with them.  The Romanian authorities, however, refused to grant Hamilton a right of residence on the ground that in Romania he could not be considered the 'spouse' of an EU citizen, since Romania does not allow same-sex marriage. 

Coman and Hamilton, represented by the Romanian NGO ACCEPT, brought an appeal before the Romanian courts challenging the decision of the Romanian authorities. The Romanian Constitutional Court asked the EU Court of Justice whether Hamilton should be recognised as the spouse of an EU citizen and granted a right of permanent residence in Romania under EU law.

"While this case does not require EU Member States to accept same-sex marriage," said MacLennan, "it provides equal treatment for same-sex married couples when exercising their EU free movement and residence rights, and is an important step on the journey to equality for families across Europe."

Importantly, the judgment reflects the evolution in attitudes towards LGBT rights in the last 20 years. Of the 28 EU Member States, 13 allow the legal celebration of same-sex marriage. A 14th, Austria, is due to join them on January 1, 2019. A further eight countries have equivalent partnership regimes. Only six Member States have no form of legal protection for same-sex relationships. Recent European Court of Human Rights rulings have also further strengthened the protection of same-sex couples.

"I hope that these developments, as well as the Court's judgement, will help further in shifting attitudes across Central & Eastern Europe, ensuring that this evolution towards equality is truly Europe-wide," said MacLennan.