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11th Apr 2021

EU top lawyer says Romania must accept gay partners

  • The term 'spouse' in EU legislation is gender neutral, says advocate general (Photo: zelle duda)

One of the EU's most senior legal advisers has said that same-sex partners of EU citizens enjoy the same free movement rights as partners of a different gender.

Advocate general Melchior Wathelet at the Court of Justice of the European Union wrote in an opinion published on Thursday (11 January) that Romania was wrong to deny a work and residence permit to the male spouse of a Romanian man.

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"Although member states are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory," the court said, summarising Wathelet's analysis in a press statement.

The case involves a Romanian male national who had married a man from the United States in Brussels in 2010.

Two years later, the couple wanted to move to Romania, and requested the necessary documents. Romania, which does not allow same-sex marriages, refused.

A 2004 directive on the EU's freedom of movement principle gives rights to an EU citizen's spouse, without specifying how 'spouse' is defined.

According to top lawyer Wathelet, the word spouse is gender neutral.

He noted that "the directive makes no reference to member state law in order to determine the nature of 'spouse', even though that concept must be interpreted autonomously and uniformly throughout the EU".

Wathelet wrote that the definition of marriage being between two persons of the opposite sex was becoming outdated, referring to "the general evolution of the societies of the member states of the EU in the last decade in the area of authorisation of same-sex marriage".

He stressed that EU countries are free to decide if they will allow same-sex marriage in their territory, but that they have to accept such marriages concluded in other EU states.

"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," he wrote.

Advocates general's opinions are not binding, but the court often rules the same way as the advocate general.

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