(Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Right of Union citizens to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 3 — Beneficiaries — Family members of the Union citizen — Article 2(2)(a) — Definition of ‘spouse’ — Marriage between persons of the same sex — Article 7 — Right of residence for more than three months — Fundamental rights)
SOURCE: Court of Justice of the European Union, Annual report 2018
By its judgment in Coman and Others, delivered on 5 June 2018, the Court, sitting as the Grand Chamber, provided clarification on the right to respect for private and family life as recognised by the Charter and the derived right of residence on which a third country national may rely, on the basis of Article 21 TFEU, in his capacity as husband of an EU citizen where the spouses are of the same sex. This reference for a preliminary ruling concerned a Romanian national and a US national who were married in Brussels in 2010. In 2012, they applied to the Romanian authorities to allow the US national, in his capacity as member of the Romanian national’s family, to reside lawfully in Romania for more than 3 months. That application was based on Directive 2004/38, which enables the spouse of an EU citizen who has exercised his freedom of movement to join his husband in the Member State in which the husband is living. The Romanian authorities informed them that the US national had a right of residence for only 3 months, on the ground that he could not be classified in Romania as a ‘spouse’ of an EU citizen because that Member State does not recognise marriage between persons of the same sex. Following an objection of unconstitutionality raised by the homosexual couple before the Romanian Constitutional Court, that court asked the Court of Justice whether the US national concerned could be regarded as the ‘spouse’ of an EU citizen who has exercised his freedom of movement and must therefore be granted a right of permanent residence in Romania.
The Court pointed out, first of all, that the term ‘spouse’ within the meaning of Directive 2004/38 is genderneutral and may therefore cover the same-sex spouse of the Union citizen. It went on to make clear that the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that State, for the sole purpose of granting a derived right of residence to a third country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and falls within the competence of the Member States. That obligation does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex; it is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that State, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law. An obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third country national does not thus undermine the national identity or pose a threat to the public policy of the Member State concerned.
Lastly, the Court pointed out that, as regards the term ‘spouse’ within the meaning of Directive 2004/38, the right to respect for private and family life guaranteed by Article 7 of the Charter is a fundamental right. That right has the same meaning and the same scope as the right guaranteed by Article 8 of the ECHR. According to the case-law of the ECtHR, the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.
Thus, 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, 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 its territory on the ground that the law of that Member State does not recognise marriage between persons of the same sex.