In his Opinion delivered on 11 January 2018 (C‑673/16), Advocate General Wathelet brought a detailed analysis of the concept of “spouse” within the meaning of Directive 2004/38 in the context of a marriage between two men, and strengthened the right to freedom of movement of Union citizens.
The situation at issue in the main proceedings concerns a Romanian citizen and his spouse US citizen. The couple met in the US and lived together there for four years, before the Romanian citizen moved to Brussels to work at the European Parliament. The US citizen remained to reside in the US, however, the couple got married in Belgium. Later, the couple has initiated the administrative procedure to enforce the right to family reunification in Romania. The request was dismissed on the grounds of national legislation that provides exclusively for “the union freely consented to of a man and a woman” and prohibits marriage between persons of the same sex.
The questions referred to the ECJ by the Romanian Constitutional Court, cover all the relevant options provided for by the Directive 2004/38, recognition as spouse of an EU national who has exercised the right to freedom of movement under the Treaty, and recognition as “another family member” or a partner with whom the said Union citizen has a durable relationship, duly attested.
Overviewing settled case law of the ECJ, Advocate General Wathelet underlines that the US citizen, although not directly beneficiary of the Directive 2004/38, may enforce derived right of residence under Article 21(1) TFEU, and as a consequence, the said directive must be applied by analogy. In the same context, referring to the judgment in Metock and Others (C-127/08), Advocate General Wathelet emphasises the irrelevance of the fact that the couple did not live continuously together in Brussels ” In a globalised world, it is not unusual for a couple one of whom works abroad not to share the same accommodation for longer or shorter periods owing to the distance between the two countries, the accessibility of means of transport, the employment of the other spouse or the children’s education. The fact that the couple do not live together cannot in itself have any effect on the existence of a proven stable relationship — which is the case — and, consequently, on the existence of a family life.”
Responding the questions referred by the Romanian Constitutional Court, the Advocate General, observes that the legal issue in discussion is not that of recognition of marriage between persons of the same sex, but that of the freedom of movement of a Union citizen. While Member States” are free to provide or not for marriage for persons of the same sex in their internal legal order”, the decision made by the Romanian immigration authority, has an intrinsic connection with the freedom of movement of a Union citizen, and prevents a third-country national from being granted the right of entry and residence in the Member State of residence of that citizen. (reference is made to the judgment in Iida C‑40/11).
The concept of “spouse” must be thus interpreted exclusively in the sense of Article 2(2)(a) Directive 2004/38,.and in context, it is gender-neutral and independent of the place where the marriage was contracted.
The Advocate General relies inter alia on the uniform application of EU law and the principle of equality (see Nikiforidis C‑135/15) ,the interpretation of the EU law “in the light of the present day circumstances” (i.e. increase in the number of Member States allowing marriage between persons of the same sex), the right to respect for private and family life secured by Article 8 of the ECHR, and finally, the recital 31, Directive 2004/38, states that Member States should implement the directive “without discrimination between the beneficiaries of [the] Directive on grounds such as … sexual orientation”.
Lastly, although ruled out by the suggested recognition of the capacity of spouse, the Advocate General addresses the possible recognition as “another family member” or a partner with whom the Union citizen has a durable relationship, duly attested.
In context, Advocate General Wathelet observes that as the case at issue, Articles 7 and 21 of the Charter, preclude the refusal to grant the application for entry and residence, solely or decisively based on sexual orientation. In the same context, the protection of the “traditional family” under Article 14 ECHR, cannot justify discrimination on grounds of sexual orientation. More ever, Member States do not allow marriage and/or registered partnership between persons of the same sex, have a positive obligation to offer those persons” the opportunity of having their union recognised in law and protected by the courts”.