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Marriage certificates between persons of the same sex will be recognized in Romania if they are concluded in another EU member state

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Materiały Prasowe,
12.12.2023 12:00

Marriage certificates between persons of the same sex will be recognized in Romania if they are concluded in another EU member state. The government is making revisions to Emergency Ordinance no. 194/2002 concerning the regulations for foreigners in Romania.

Through the modification of Government Emergency Ordinance no. 194/2002 concerning the regulations for foreigners in Romania, the Executive incorporates into the national legal framework the legal provisions established at the EU level, specifically related to the free movement of individuals. The Ministry of Internal Affairs clarified that this legislative proposal does not address the recognition of same-sex marriages or civil partnerships within our country or any associated rights. Hence, marriage certificates between individuals of the same sex, obtained in an EU member state, will be acknowledged in Romania without the requirement for their transcription into the Romanian civil registry, as indicated in the proposed law scheduled for discussion on the 27th of September, as reported by news.ro.

The Romanian Government is making these legislative changes following a CJEU decision.

"The Court of Justice of the European Union (CJEU) issued a ruling in case C-673/16, following a referral by the Romanian constitutional court, which stated: '1) In a scenario where a Union citizen has exercised their freedom of movement by relocating and residing in another Member State in accordance with the conditions outlined in Article 7(1) of Directive 2004/38/EC, and has established or strengthened a family bond with a third-country national of the same sex, with whom they are legally married in the host Member State, Article 21(1) of the TFEU must be interpreted as prohibiting the competent authorities of the Member State of which the Union citizen is a national from denying a right of residence on its territory to the national of the same country, based on the fact that the law of the Member State in question does not permit same-sex marriage'", the explanatory memorandum of the draft law on the agenda of Wednesday's Government meeting states.

According to the explanatory memorandum, Article 21 (1) of the Treaty on the Functioning of the European Union (TFEU) "must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a third-country national of the same sex as the Union citizen, whose marriage to the latter was concluded in a Member State in accordance with the law of that State, has a right of residence for a period of more than three months in the territory of the Member State whose nationality the Union citizen has. This derived right of residence cannot be subject to stricter conditions than those provided for in Article 7 of Directive 2004/38/EC."

The source also highlights that the judges of the Constitutional Court of Romania (CCR) accepted an exception of unconstitutionality regarding a provision in the Civil Code and determined that it is constitutional in the sense that it permits the awarding of the right of residence in Romania, in accordance with the conditions specified by European law, to same-sex spouses who were married in a European Union Member State.

"Examining the CJEU decision mentioned above, the Constitutional Court of Romania admitted the exception of unconstitutionality of the provisions of Article 277 (2) and (4) of the Civil Code, finding that these are constitutional insofar as they allow the granting of the right of residence on the Romanian territory, under the conditions stipulated by European law, 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 explanatory memorandum of the draft law further states.

On the 11th of July, the Ministry of Internal Affairs stated in a press release that "the adoption of these measures is a compulsory requirement for Romania, as a result of the judgment issued by the Court of Justice of the European Union on the 5th of June, 2018, in case C-673/16. Failure to adhere to these requirements could trigger an infringement procedure, potentially leading to Romania's condemnation by the European Court of Justice."

What does Romania risk if it does not implement the European decision

Representatives of the Ministry of Internal Affairs also stated then that "a possible condemnation has significant financial implications for the Romanian state".

At present, the financial penalties that could be recommended in the case of Romania during infringement proceedings range from 1,830 to 109,800 euros for each day of non-compliance, along with a minimum fixed sum of 1,708,000 euros.

The Ministry of Internal Affairs also said that according to the "provisions of the legislative document, individuals who are not citizens of Romania but have entered into marriage within another EU Member State with a Romanian citizen of the same sex may, when required, can apply for a visa for entry into Romania or seek the right of residence within our nation, as governed by the law, based on the continuation of their familial ties with the Romanian citizen".

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