European Court of Justice advised to urge Romania to give residency to gay man′s partner | Europe| News and current affairs from around the continent | DW | 11.01.2018
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Gay rights

European Court of Justice advised to urge Romania to give residency to gay man's partner

A legal advisor to the ECJ said in an opinion that under the EU's freedom of movement directive, the term "spouse" includes same-sex partners. This would apply even if the EU member state does not recognize gay marriage.

The legal advisor to the European Union's top court issued an advisory ruling on Thursday, reccomending that Romania must give residency to the same-sex partner of one of its citizens, despite Romania not recognizing same-sex marriage.

The legal opinion comes after same-sex couple Relu Coman, a Romanian national, and his American partner Robert Hamilton requested for Romanian authorities to issue the documents needed to allow Coman to work and reside permanently in Romania with Hamilton in December 2012.

Read more: Gay marriage in Austria approved by Constitutional Court

The request was based on the directive on the exercise of freedom of movement, which permits the spouse of an EU citizen to join his or her partner in the member state where the EU citizen resides.

But Romanian authorities refused to grant Hamilton residency, on the grounds that he could not be classified as the "spouse" of an EU citizen in Romania because the country does not recognize same-sex marriage.

Read more: Gay couple becomes first in Germany to adopt child

Coman and Hamilton appealed the authorities' decision at Romania's Constitutional Court, which then referred the issue to the Court of Justice, asking if Hamilton must be granted permanent residency in Romania based on his EU spouse having exercised his freedom of movement.

Generally accepted marriage definition 'can no longer be followed'

In Advocate General Melchior Wathelet's legal opinion on Thursday, he said the legal issue at the center of the dispute was not the legalization of same-sex marriage, but the free movement of EU citizens.

"While member states are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of EU citizens," the statement said.

Read more: Australian gays say 'I do' as marriage reform kicks in

Wathelet said that the directive on the exercise of free movement made no reference to member state law in determining the nature of the term "spouse."

He said that while the term "spouse" within the meaning of the directive refers to a marriage, it was neutral as to the sex of the persons in the marriage and indifferent to where the marriage took place.

Read more: Germans celebrate first gay marriages

"In the view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorization of same-sex marriage,  the case-law of the Court whereby ‘according to the definition generally accepted by the member states, the term marriage means a union between two persons of the opposite sex’ can no longer be followed," the statement said.

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