Opinion of the Advocate General — ECLI:EU:C:2018:2
Date: 2018-01-11
Language of the case: Romanian
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Romania

Summary — Judgment of the Court (Grand Chamber), 5 June 2018 1. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Derived right of residence of his family members, third country nationals — Conditions — Genuine residence of the Union citizen in the host Member State under Directive 2004/38 — Application by analogy of the conditions laid down by that directive under which the right of residence may be granted (Art. 21(1) TFEU; European Parliament and Council Directive 2004/38) 2. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Derived right of residence of his family members, third country nationals — Union citizen having lawfully entered into a marriage in the host Member State with a third country national of the same sex — Refusal by the Member State of which the Union citizen is a national to grant a right of residence in its territory to that third country national as national law does not recognise marriage between persons of the same sex — Not permissible — Justification on grounds of public policy and national identify — No such justification (Art. 21(1), TFEU; European Parliament and Council Directive 2004/38, Art. 7(1)) 3. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Derived right of residence of his family members, third country nationals — Third country national having married a Union citizen of the same sex, the marriage having been entered into in a Member State in accordance with the law of that state — Right of residence of more than three months in the territory of the Member State of which the Union citizen is a national — Conditions (Art. 21(1) TFEU; European Parliament and Council Directive 2004/38, Art. 7) 1. See the text of the decision. (see paras 23-25) 2. In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) 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, in a Member State other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex. (see para. 51, operative part 1) 3. Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38. (see para. 56, operative part 2)