The term "spouse" includes a spouse of the same sex for the purposes of European free movement, even in member states whose laws do not provide for same-sex marriage, according to Advocate General Melchior Wathelet.
Although the decision has been approved by members of the ECJ, a final decision is still to be approved in a full court case.
Wathelet issued the opinion in regards to a 2010 case involving a Romanian citizen named Adrian Coman who married his American husband, Claibourn Robert Hamilton, in Brussels in 2010.
"The obligation to facilitate the entry and residence of the national of a third state of the same sex as the citizen of the European Union to whom he or she is married is greater, and the discretion narrower, when the member state does not allow marriage between persons of the same sex and does not afford homosexual couples the possibility of entering into a registered partnership", Wathelet wrote.
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EU laws guarantee citizens of member states and their family members the right to move and freely reside in any country in the bloc, subject to certain conditions, raising questions about the legal rights of same-sex spouses in countries where such unions are not legal.
In his Opinion delivered today, Advocate General 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.
Romania does not have marriage equality - but it must now recognize the rights of same-sex spouses. The couple challenged the decision in Romania's constitutional court, saying it was discriminatory on the grounds of sexual orientation.
Wathelet wrote that the definition of marriage being between two persons of the opposite sex was becoming outdated, referring to "the general evolution of the societies of the member states of the European Union in the last decade in the area of authorisation of same-sex marriage".
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The Dutch MEP Sophie in 't Veld said: "This is fantastic news and a landmark opinion for rainbow families".
"Romanian citizens can not be divided into good and gay".
If Coman's bid is successful, the ruling would be controversial in Romania, where USA evangelicals have pushed a law to ban same-sex marriage. In its conclusions, known this Thursday, community lawyer opens door to a greater protection of rights of homosexual marriages in countries where it is not legalized.
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