The Notion of “Spouse” within the Meaning of the Provisions of EU Law on Freedom of Residence for EU Citizens

Abstract

In the Coman case,1 the Court was asked by the Constitutional Court of Romania whether a non-EU citizen same-sex spouse of a Romanian national should be granted, by virtue of the provisions of the EU law on freedom of residence for EU citizens, a permanent right to stay in Romania, where the conclusion and the recognition of same-sex marriages are prohibited by the
national law.

By the judgment of 5 June 2018, the Court ruled that the term “spouse” within the meaning of the provisions of EU law on freedom of residence for EU citizens, which entitle the family members of an EU citizen exercising the right to freely move within the EU to stay with this citizen, includes spouses of the same sex.

In this regard, the Court set out that, although the Member States have the freedom whether or not to authorise marriages 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, regardless of this latter’s nationality, a derived right of residence in their territory.