In a landmark ruling for LGBT rights in Europe, the European Court of Justice has directed all member countries to recognize the residency rights of same-sex spouses, even if the country does not allow same-sex marriages.

It ruled, "...in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38, in a Member State other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognize marriage between persons of the same sex."

Factual matrix

The case before the ECJ concerned Mr. Relu Adrian Coman, a Romanian national and Mr. Robert Clabourn Hamilton, an American national, who lived together in the United States for four years before getting married in Brussels in 2010. Mr. Hamilton was, however, denied the right of residence in Romania beyond three months, on the ground, in particular, that he could not be classified in Romania as a ‘spouse’ of an EU citizen as Romania does not recognize marriage between persons of the same sex.

The couple then approached the Constitutional Court, Romania, which in turn asked the ECJ whether Mr. Hamilton may be regarded as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement, and must therefore be granted a permanent right of residence in Romania.

Legal context

Article 21(1) of the Treaty on the Functioning of the EU guarantees the right to freedom of movement for all EU citizens. Further, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 lays down the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

The Directive essentially lays down the conditions for the right of free movement and residence (both temporary and permanent) for EU citizens and their family members. It sets out the limits to these rights as well, on grounds of public policy, public security or public health.

"Spouse"- Gender-neutral term in the directive

The ECJ emphasized on the Member States' autonomy to decide whether or not to allow homosexual marriage. It further observed that the EU respects the national identity of the Member States, inherent in their fundamental structures, both political and constitutional.

It nonetheless ruled that the term ‘spouse’ used under the definition of a "family member" in Article 2(2)(a) of the directive is gender-neutral and may therefore cover the same-sex spouse of an EU citizen. Besides, it opined that the refusal of such recognition by a Member State would interfere with the exercise of that citizen’s right to move and reside freely within the territory of the Member States. This could also lead to the freedom of movement in one State being different from that in the other State, depending upon the national law allowing marriage between persons of the same sex, it said.

Public policy considerations

The Court did note that freedom of movement may be subject to restrictions independently of the nationality of the persons concerned, if the restrictions are based on "objective public-interest considerations" and are "proportionate to a legitimate objective pursued by national law".

It further opined that public policy must be interpreted strictly, and that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions. It then ruled that the obligation of a Member State to recognize a homosexual marriage concluded in another Member State for the sole purpose of granting a right of residence does not undermine the institution of marriage in the first Member State (Romania in this case). Such recognition, it further asserted, "does not undermine the national identity or pose a threat to the public policy of the Member State concerned".

Fundamental Right to respect for family and private life

Lastly, the Court observed that a national measure that obstructs the exercise of freedom of movement for persons may be justified only if it is consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. It then pointed out the fundamental right to respect for family and private life guaranteed by Article 7 of the Charter, and opined that the "relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation."