Melchior Wathelet, an advocate general speaking in the European Court of Justice, proclaimed that the rights and privileges of same-sex spouses ought to be recognised and respected by all member states of the European Union, even when a state’s government has not legalised gay marriage.
The proclamation is seen as a progressive step forward; however, it Is of paramount importance that the statements of advocate generals are non-binding on the judiciary of the European Court of Justice. The Guardian reports:
“Wathelet’s opinion was given in the case of a Romanian national, Adrian Coman, who wanted to be able to build a life in Romania with his American husband, Claibourn Robert Hamilton, with whom he had been living for four years in the US before marrying in Brussels in 2010.”
Romania, along with Poland, Slovakia, Bulgaria, Lithuania, and Latvia, has not recognised same-sex marriage in law. When attempting to settle in Romania with his husband, Coman and Hamilton faced difficulties when Hamilton was denied a right of residence due to the fact that, in Romanian law, he could not be identified as a spouse of an EU citizen.
Watelet’s argument in the case is that the refusal of residency on this ground contradicts the European Union Directive on the freedom of movement which secures this specific right, without specifying the gender of a spouse, for a non-EU spouse of an EU citizen seeking residency. The European Court of Justice, based in Luxembourg, will hand its judgment down in the upcoming weeks.
Wathelet has argued:
“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 […] “
Usually, the statements issued by a top advocate general are taken into consideration and then followed by the European Court of Justice. It is noteworthy, however, that the “ECJ does not decide the dispute itself: the national court tribunal will make it ruling following the court’s decision.”