Author : Judith Mischke
Posted on : POLITICO |January 11th,2018
An EU member country cannot refuse residency rights to the same-sex spouse of an EU citizen on the grounds that it does not recognize gay marriage, a European Court of Justice advocate general said in an opinion published Thursday.
The opinion was issued in response to a 2012 case in which Romanian authorities refused to grant residency rights to a male U.S. national married to a Romanian man.
The country, which joined the bloc in 2007, does not recognize same-sex marriages, and said it did not consider the U.S. national to have the legal rights of a “spouse.”
The couple married in Belgium in 2010. EU legislation stipulates that the freedom of movement of EU citizens permits “the spouse of an EU citizen who has exercised that freedom to join his or her spouse in the member state where the latter resides.”
“The legal issue at the center of the dispute is not that of the legalization of same-sex marriage, but that of the free movement of EU citizens,” Melchior Wathelet, advocate general at the European Court of Justice, said in his opinion, which is not legally binding.
The bloc’s members “must fulfill their obligations under the freedom of movement of EU citizens,” regardless of whether or not they recognize same-sex marriage, according to Wathelet.
The married partner — including partners in same-sex unions — “may also reside on a permanent basis in the territory” of an EU member country where “his or her spouse is established as an EU citizen after exercising his or her freedom of movement,” according to the opinion.
The Romanian Constitutional Court referred the gay marriage case to the European Court of Justice in November 2016. A final ruling on the case is still pending.