Coman and Hamilton have been fighting for years to have their legal status as spouses officially recognised in Romania, where there is strong anti-gay sentiment.
Adrian Coman, from Romania, and Clai Hamilton, an American, got married in Brussels eight years ago. Or what is same, if a European citizen marries someone outside EU, he/she has right to have his or her partner move with him or her to any of twenty-eight Member States, regardless of wher or not law of country recognizes homosexual marriage.
"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 European Union 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.
"In his opinion delivered today, advocate general Melchior Wathelet states, first of all, that the legal issue at the centre of the dispute is not that of the legalisation of same-sex marriage, but that of the free movement of European Union citizens", the court said in a statement.
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The gay couple, alleging discrimination on the basis of sexual orientation, challenged the decision of Romanian authorities. Romania's constitutional court then referred the case to the ECJ.
Wathelet noted that the Netherlands and Belgium were the only two European Union member states that made marriage available to same-sex couples in 2004 when the European Union citizenship directive at issue was adopted.
Next, the Advocate General finds 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.
Advocates general's opinions are not binding, but the court often rules the same way as the advocate general.
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Sophie in 't Veld, the Vice President of the European Parliament's LGBTI Intergroup, told PinkNews: "This is fantastic news and a landmark opinion for rainbow families!"
They turned down the request because Romanian law prohibits same-sex marriages and does not recognize such marriages that have taken place overseas.
"Romanian citizens can not be divided into good and gay".
A senior adviser to the European Union's top court has backed a Romanian gay man's right to have his United States husband live with him in Romania.
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