The Court of Justice of the European Union (ECJ) has ruled that EU countries must grant a right of residence to a homosexual spouse of a European citizen, even in a Member State that does not recognise gay marriage.
« Although Member States are free to allow same-sex marriage, they can not impede the freedom of residence of a Union citizen by refusing to grant to a same-sex spouse who is a national of non-EU country, a right of residence derived in their territory, » said the Court of Justice of the European Union (CJEU) in its judgement.
The ruling came in response to a case brought by a Romanian-American homosexual couple. In 2012, the two men had asked Bucharest for recognition of their marriage in Brussels two years earlier, so that the American spouse could settle with his husband in Romania.
But the Romanian authorities only granted him a three-month residence permit on the grounds that he could not be described as a « spouse » of a Union national in Romania, since same-sex marriage It is not legal there.
The Court clarified in its judgement that the notion of « spouse », as referred to in the European directive on freedom of movement, « is gender-neutral and may therefore cover the same-sex spouse of an EU citizen« .
It considers that ‘the obligation for a Member State to recognise, for the sole purpose of granting a derived right of residence to a national of a non-EU State, a same-sex marriage concluded in another Member State. ..) does not affect the institution of marriage in this first Member State. » This « does not ignore the national identity or threatens public order in the Member State concerned, » the Court said.
On the other hand, refusing to recognise same-sex marriage in this context « is liable to impede the exercise of the right » of the EU citizen to « move and reside freely within the territory of the Member States. »
The Romanian Constitutional Court will have to decide in this case. The Romanian-American couple’s demand is a first in Romania, where homosexuality was only decriminalized in the early 2000s.