Libertà di circolazione del cittadino dell’Unione e ricongiungimento con il coniuge straniero dello stesso sesso: un nuovo diritto di soggiorno derivato alla luce del caso Coman

Freedom of Movement of the EU Citizen and reunification with a foreign same-sex spouse: a new derived right of residence in the light of the Coman case The right to family reunification in the host Member State is conferred by Article 2(2)(a) of Directive 2004/38 to the spouses of EU "mobile" citizens. However that Directive does not explicitly establish whether same-sex spouses are covered in its scope. This question was investigated in the Coman case. The Romanian Constitutional Court referred to the EU Court of Justice in order to establish whether the derived right of residence could be based on EU Law and not on national Law, in that Romanian Law forbids same-sex marriage as well as the recognition of such marriages celebrated abroad. Hence, the Court of Justice has interpreted Article 2(2)(a) of Directive 2004/38 with reference to the term "spouse". Moreover, the Court has considered whether such right of residence can be recognized to a same-sex spouse, basing on Article 21 TFEU, when a "mobile" citizen returns to his or her State of origin. This paper focuses on the analysis of these questions and whether the new derived right of residence actually strengthens the value conferred to the status of EU citizens by the Court of Justice case-law.