Advocate General Wathelet has delivered his opinion that although it is within the margin of appreciation for Member States to legalise marriage between persons of the same sex, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory.
The applicant Mr Hamilton, a US national, had been in a relationship with Mr Coman, a Romanian national, since 2002. They lived together in New York from 2005 to 2009, until Mr Coman left to take up a position in Brussels in 2010. The couple married in Brussels later that year.
In 2012 the couple embarked on the administrative steps necessary in order for Mr Hamilton to be able to work and lawfully live in Romania. The General Inspector for Immigration in Romania refused their request on the basis that Mr Hamilton could not be classified as a ‘spouse’ of an EU citizen because Romania did not recognise same-sex marriage under its national laws. The couple later appealed the constitutionality of that refusal and a series of questions were referred to the Court of Justice of the European Union for consideration.
Advocate General Wathelet stated that the issue for consideration is not the legalisation of same-sex marriage, but of freedom of movement within the EU. Member States are not required to legalise same-sex marriage, however they must fulfil their obligations under the freedom of movement of EU citizens.
Directive 2004/38 (the Citizens Directive) sets out a number of measures designed to encourage Union citizens to exercise their right to move and reside freely within Member States, to reduce administrative formalities, to provide a better definition of the status of family members and to limit the scope of refusing entry or terminating the right of residence.
Advocate General Wathelet opined that the term ‘spouse’ within the meaning of the Directive must be given a uniform autonomous interpretation. According to that interpretation, a non-EU national who is lawfully married in a Member State to an EU citizen of the same sex would be considered a ‘spouse’ within the Directive.
Advocate General Wathelet arrived at this conclusion through a review of settled case law of the Court of Justice which requires the uniform application of EU law. Furthermore the Advocate General noted that Directive 2004/38/EC does not make reference to Member State law in order to determine the nature of ‘spouse’. The Advocate General points out that the term ‘spouse’ within the meaning of the Directive refers to a relationship based on marriage while nevertheless being neutral as to the sex of the persons concerned and indifferent as to the place where the marriage was contracted.
The Advocate General was also influenced by the evolving nature of society and the context within which laws must be interpreted. In particular there was a developing interpretation of the concept of ‘spouse’ across the EU and laws must be interpreted in light of present day circumstances. Advocate General Wathelet also referenced the growing jurisprudence of the European Court of Human Rights (ECtHR) and article 8 in particular. Reference was made to the fact that the ECtHR is inclined to consider a difference in treatment based solely – or decisively – on considerations regarding an applicant’s sexual orientation to be simply unacceptable. The EctHR also considered that in the area of family reunification, the objective of protecting the traditional family cannot justify discrimination on grounds of sexual orientation. The development of the understanding of family life has an impact on the right of residence of nationals of third countries.
In conclusion, the Advocate General is of the opinion that the concept of ‘spouse’ includes same-sex spouse within the meaning of the Directive. In line with this the same sex spouse enjoys a right of residence of more than three months provided that the other conditions laid down in Article 7 are satisfied .For a copy of the opinion please click here.