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*PIL Case Law

Published on January 31st, 2018 | by efi kloyeri

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Summary: C-673/2016: Opinion of advocate general Wathelet- directive 2004/38/EC – concept of ‘spouse’and reside within the territory of the Union

Key-words: Citizenship of the Union-Directive 2004/38/EC-Article 2(2)(a)-Concept of ‘spouse’-Right of citizens of the Union to move and reside within the territory of the Union-Marriage between persons of the same sex-Marriage not recognised by the host State-Article 3-Concept of ‘[other] family members’-Article 7- Right of residence for more than three months-Articles 7 and 21 of the Charter of Fundamental Rights of the European Union

Opinion of advocate general Wathelet, delivered on 11 January 2018

 A: The facts in the main proceedings and the question referred

 Mr Relu Adrian Coman, of both romanian and american nationality, was married to Mr Robert Clabourn Hamilton (american nationality) in Brussels (2010). In 2012, they embarked on the administrative steps with the Romanian administration in order to obtain the documents necessary for Mr Coman, with his non-EU-national spouse, to be able to work and reside lawfully in Romania for a period of more than three months.

In 2013, the Inspectoratul General pentru Imigrări (General Inspectorate for Immigration, Romania) refused their request, maintaining that the extension of the right of temporary residence of a United States national on the conditions laid down in the Romanian legislation on immigration in conjunction with the other relevant legal provisions in that sphere could not be granted for the purposes of family reunion. Under these circumstances, they brought an action against the decision of the Inspectoratul General pentru Imigrări before the Judecătoria Sectorului 5 București (Court of First Instance, District 5, Bucharest, Romania), claiming the violation of their right to personal life, family life and private life as well as the principle of equality.

The above Court requested the Curtea Constituţională (Constitutional Court, Romania) to rule on that plea of unconstitutionality, which proceeded to request a preliminary ruling from the Court:

B: Questions referred to the Court:

(1)  Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

(2) If the answer [to the first question] is in the affirmative, do Articles 3(1) and 7([2])  of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant the right of residence in its territory or for a period of longer than three months to the same-sex spouse of a citizen of the European Union?

(3) If the answer to [the first question] is in the negative, can the same-sex spouse, from a State which is not a Member State of the Union, of the Union citizen to which he or she is lawfully married, in accordance with the law of a Member State other than the host State, be classified as “any other family member” within the meaning of Article 3(2)(a) of Directive 2004/38 or a “partner with whom the Union citizen has a durable relationship, duly attested”, within the meaning of Article 3(2)(b) of that directive, with the corresponding obligation for the host Member State to facilitate entry and residence for that spouse, even if that State does not recognise marriages between persons of the same sex and provides no alternative form of legal recognition, such as registered partnership?

(4) If the answer to [the third question] is in the affirmative, do Articles 3(2) and 7(2) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, require the host Member State to grant the right of residence in its territory or for a period of longer than three months to the same-sex spouse of a Union citizen?

C. Legal Context

Articles 2, 3 and 7 of the Directive 2004/38/EC, regarding the free movement and reside within the territory of the Union as well as the articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union.

 D: Opinion of advocate general

 1. First question referred

According to the Court’s settled case-law, it is required by both the uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That interpretation must have regard not only to the wording of the provision but also to its context and the objective pursued by the legislation in question.

In the present case, the questions submitted by the referring court relate exclusively to the application of Directive 2004/38. The only thing required, therefore, is to define the implications of an obligation resulting from an act of the Union. Consequently, interpretation of the term ‘spouse’, restricted to the ambit of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, will not adversely affect the current freedom of Member States as regards the legalisation of marriage between persons of the same sex.

Directive 2004/38 does not define the term ‘spouse’, however the structure of Article 2(2) of Directive 2004/38, in conjunction with Article 3(2)(b) of that directive, confirms that the concept of ‘spouse’ refers to that of ‘marriage’. In fact, besides the direct descendants and direct ascendants referred to in Article 2(2)(c) and (d) of Directive 2004/38, the ‘family members’ within the meaning of Directive 2004/38 are the spouse and the partner with whom the Union citizen has contracted a registered partnership. Article 3(2)(b) of Directive 2004/38 adds to the beneficiaries of the directive ‘the partner with whom the Union citizen has a durable relationship, duly attested’.The word ‘spouse’ relates to marriage is gender-neutral and independent of the place where the marriage was contracted. Moreover, EU law must be interpreted ‘in the light of present day circumstances’, by taking the ‘modern reality’ of the Union into account.

That interpretation  of the “sprouse”provides the optimum respect for family life guaranteed in Article 7 of the Charter while leaving to Member States the freedom to authorise or not marriage between persons of the same sex. It has consistently been held that the purpose of Directive 2004/38 is to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on citizens of the Union by Article 21(1) TFEU and to reinforce that right.

Because of those objectives, the Court consistently considers that the provisions of Directive 2004/38 may not be interpreted restrictively.

The general advocate concludes that:

On a proper construction of Article 2(2)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married.

 2. Second question referred

Article 3(1) and Article 7(2) of Directive 2004/38 must be interpreted as meaning that the spouse of the same sex as a citizen of the Union who accompanies that citizen in the territory of another Member State enjoys in that territory a right of residence of more than three months, provided that the Union citizen concerned satisfies the conditions laid down in Article 7(1)(a), (b) or (c).

Article 21(1) TFEU must be interpreted as meaning that, in a situation in which a citizen of the Union has developed or consolidated a family life with a national of a third State while actually residing in a Member State other than that of which he or she is a national, the provisions of Directive 2004/38 apply by analogy when that citizen of the Union returns, with the family member concerned, to his or her Member State of origin. In that situation, the conditions for the grant of a right of residence for a period of more than three months to the national of a third State, who is the same-sex spouse of a Union citizen, should not in principle be stricter than those laid down in Article 7(2) of Directive 2004/38.

3. Third and Fourth questions referred

Article 3(2) of Directive 2004/38 must be interpreted to the effect that it can be applied to the situation of a national of a third State, of the same sex as the citizen of the Union to whom he or she is married in accordance with the law of a Member State, whether as ‘[another] family member’ or as the ‘partner with whom the Union citizen has a durable relationship, duly attested’.

Article 3(2) of Directive 2004/38 must be interpreted as meaning that:

– it does not oblige Member States to grant the national of a third State legally married to a Union citizen of the same sex a right of residence on their territory for a period of more than three months;

– Member States must nonetheless ensure that their legislation includes criteria that allow that national to obtain a decision on his or her application for entry and residence that is founded on an extensive examination of his or her personal situation and, in the event of refusal, is supported by reasons;

– although the Member States have broad discretion in selecting those criteria, the latter must be consistent with the normal meaning of the word ‘facilitate’ and must not deprive that provision of its effectiveness; and

– refusal of the application for entry and residence may not at all events be based on the sexual orientation of the person concerned.

 Eftihia-Angie Klogkiri

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