ECJ rules ‘spouse’ includes same-sex couples under freedom of residence law
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ECJ rules ‘spouse’ includes same-sex couples under freedom of residence law

The European Court of Justice (ECJ) [official website] ruled [judgment] Tuesday that even if an EU country’s government has not authorized same-sex marriage, same-sex couples must still be offered the same residency rights as heterosexual couples.

The issue arose because EU law [materials] permits the spouse of an EU citizen to obtain a residence permit for any member state where the spouse resides. But Romanian authorities refused to honor a request of a same-sex couple, Relu Adrian Coman, a Romanian, and Robert Clabourn Hamilton, an American, who were married in Brussels in 2010. The couple challenged the decision in Romania’s constitutional court, which then referred the case to the ECJ.

In January EU Advocate General Melchior Wathelet advised [opinion] the ECJ that the rights of same-sex spouses must be recognized [JURIST report] by every member of the EU.

A statement [press release, PDF] from the Court of Justice said:

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.

Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, 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.

The Romanian Courts are left to make a final judgment but must take the EU judgment into account.