# C_2017104EN.01002901.xml

| 3.4.2017 | EN | Official Journal of the European Union | C 104/29 |
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3.4.2017

EN

Official Journal of the European Union

C 104/29

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Request for a preliminary ruling from the Curtea Constituțională a României (Romania) lodged on 30 December 2016 — Relu Adrian Coman, Robert Clabourn Hamilton, Asociația Accept v Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne, Consiliul Național pentru Combaterea Discriminării

(Case C-673/16)

(2017/C 104/43)

Language of the case: Romanian

Referring court

Referring court

Curtea Constituțională a României

Parties to the main proceedings

Parties to the main proceedings

Applicants: Relu Adrian Coman, Robert Clabourn Hamilton, Asociația Accept

Applicants:

Defendants: Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne, Consiliul Național pentru Combaterea Discriminării

Defendants:

Questions referred

Questions referred

| 1. | Does the term ‘spouse’ in Article 2(2)(a) of Directive 2004/38/[EC], (1) in conjunction with 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 under the law of a Member State other than the host Member State? |
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1.

Does the term ‘spouse’ in Article 2(2)(a) of Directive 2004/38/[EC], (1) in conjunction with 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 under the law of a Member State other than the host Member State?

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| 2. | If the answer to Question 1 is in the affirmative, do Articles 3(1) and 7(1) of Directive 2004/38/[EC], in conjunction with Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, require the host Member State to confer the right of residence in its territory or for a period of longer than three months on the same-sex spouse of a citizen of the European Union? |
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2.

If the answer to Question 1 is in the affirmative, do Articles 3(1) and 7(1) of Directive 2004/38/[EC], in conjunction with Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, require the host Member State to confer the right of residence in its territory or for a period of longer than three months on the same-sex spouse of a citizen of the European Union?

| 3. | If the answer to Question 1 is in the negative, can the same-sex spouse, from a State which is not a Member State of the European Union, of a European Union citizen, to whom the citizen concerned is lawfully married under the law of a Member State other than the host Member State, be classified as ‘any other family member’ within the meaning of Article 3(2)(a) of Directive 2004/38/[EC] or ‘partner with whom the Union citizen has a durable relationship, duly attested’ within the meaning of Article 3(2)(b) of Directive 2004/38/[EC], with the corresponding obligation for the host Member State to facilitate entry and residence for him, even though the host State does not recognise marriages between members of the same sex or provide for an alternative form of legal recognition, such as registered partnerships? |
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3.

If the answer to Question 1 is in the negative, can the same-sex spouse, from a State which is not a Member State of the European Union, of a European Union citizen, to whom the citizen concerned is lawfully married under the law of a Member State other than the host Member State, be classified as ‘any other family member’ within the meaning of Article 3(2)(a) of Directive 2004/38/[EC] or ‘partner with whom the Union citizen has a durable relationship, duly attested’ within the meaning of Article 3(2)(b) of Directive 2004/38/[EC], with the corresponding obligation for the host Member State to facilitate entry and residence for him, even though the host State does not recognise marriages between members of the same sex or provide for an alternative form of legal recognition, such as registered partnerships?

| 4. | If the answer to Question 3 is in the affirmative, do Articles 3(2) and 7(2) of Directive 2004/38/[EC], in conjunction with Articles 7, 9, 21 and 45 of the Charter of Fundamental Rights of the European Union, require the Member State to confer the right of residence in its territory or for a period of longer than three months on the same-sex spouse of a citizen of the European Union? |
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4.

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

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(1)  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 (OJ 2004 L 158, p. 77)

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