(Brussels) “The term ‘spouse’ within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members includes spouses of the same sex”: this is stated in a press release from the Court of Justice of the European Union about today’s judgement in Case C-673/16. “Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex – the release reads -, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory”. Now it is just a few cases, but the judgement is intended to clarify matters based on EU standards. “Mr Relu Adrian Coman, a Romanian national, and Mr Robert Clabourn Hamilton, an American national, lived together in the United States for four years before getting married in Brussels in 2010. In December 2012, Mr Coman and his husband contacted the Romanian authorities to request information on the procedure and conditions under which Mr Hamilton, in his capacity as a member of Mr Coman’s family, could obtain the right to reside lawfully in Romania for more than three months. That request was based on the directive on the exercise of freedom of movement” (Directive 2004/38/CE), “which allows the spouse of an EU citizen who has exercised that freedom to join his husband in the Member State in which the husband is living”.
In response to this request, the Romanian authorities informed the two people concerned that Mr Hamilton “only had a right of residence for three months, on the ground, in particular, that he could not be classified in Romania as a ‘spouse’ of an EU citizen as that Member State does not recognise marriage between persons of the same sex”. Mr Coman and Mr Hamilton therefore brought an action before the Romanian courts “seeking a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement within the EU”. Asked to rule on an objection of unconstitutionality, raised in those proceedings, the Constitutional Court of Romania “asked the Court of Justice whether Mr Hamilton may be regarded as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement, and must therefore be granted a permanent right of residence in Romania”. By its judgement today, the Court in Luxembourg, “observes, first of all, that the directive on the exercise of freedom of movement governs only the conditions determining whether an EU citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on nationals of a non-EU State who are family members of an EU citizen in the Member State of which that citizen is a national”.
The Directive “cannot therefore confer a derived right of residence on Mr Hamilton in the Member State of which Mr Coman is a national, namely Romania”. The Court, however, “observes that, in certain cases, nationals of non-EU states, family members of an EU citizen, who are not eligible, on the basis of the directive, for a derived right of residence in the Member State of which that citizen is a national, could be accorded such a right on the basis of Article 21(1) of the Treaty on the Functioning of the EU (a provision which confers directly on EU citizens the primary and individual right to move and reside freely within the territory of the Member States)”. The Court “notes that, in the directive on the exercise of freedom of movement the term ‘spouse’, which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen”. Nevertheless, the Court also states that “a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States, and EU law does not detract from that competence, the Member States being free to decide whether or not to allow homosexual marriage”. It “also observes that the EU respects the national identity of the Member States, inherent in their fundamental structures, both political and constitutional”.
The Court thus intends to protect the right of European citizens to move and reside freely within the territory of the Member States, by guaranteeing that freedom of movement does not vary “depending on whether or not provisions of national law allow marriage between persons of the same sex”.