The notion of ‘spouse’, solely for the purpose of granting a derived right of residence to a third-country national, includes same-sex spouses, the Court of Justice of the EU ruled in a judgement returned on Tuesday 5 June (case C-673/16).
A Romanian national married a US national in Brussels in 2010 under Belgian law. At the end of 2012, the two spouses began procedures to settle permanently in Romania. The application for a residence permit of more than three months for the US national, pursuant to the directive (2004/38) on the freedom of movement of EU citizens, was rejected by the Romanian authorities on the grounds that Romania does not recognise same-sex marriage.
Following legal action taken by the couple, the Romanian court asked the Court of Justice whether the American husband of the Romanian national is covered by the notion of ‘spouse’ within the meaning of the directive and therefore cannot be denied permanent rights of residence in Romania.
On the basis of the conclusions of the Advocate General (see EUROPE 11937), the Court notes that within the meaning of the directive, the notion of ‘spouse’ refers to an individual who is joined to another individual by the bonds of marriage, but the term is gender-neutral. It can therefore be taken to cover spouses of the same sex as the EU citizen.
The Court stresses that the member states remain competent on recognising same-sex marriage.
However, refusing to recognise the marriage - legally entered into in a different member state - of a third-country national with an EU citizen of the same sex, for the purposes of awarding the former a derived right of residence may hinder the citizen’s exercise of his or her right to move freely in the EU. This would mean that the freedom of movement varied throughout the EU depending on the national laws on same-sex marriage, the Court explains.
It also considers that recognising a same-sex marriage legally transacted in a different member state, for the purposes of awarding a derived residence right to a third-country national, does not negatively affect the institution of marriage in that member state, as it is not required to authorise same-sex marriage on its territory.
The European Commission welcomed the Court’s verdict, which it describes as bringing an “important clarification” from a freedom of movement point of view. “All member states have the freedom whether or not to authorise marriage between persons of the same sex. They may not discriminate between EU citizens on the grounds that they are in a same-sex marriage”, a spokesperson commented.
At the European Parliament, Dutch Liberal Sophie in't Veld welcomed this Court ruling, which she said would make life easier for “rainbow’ families”, wherever their members live in the EU.
In the opposite corner, the organisation ADF International, which describes itself as a defender of religious freedom, criticised what it described as a judgment that will make the freedom of movement into an instrument to indirectly force member states to recognise homosexual marriage. (Original version in French by Mathieu Bion)