Updated: Jan 8, 2022
MS RESERVED COMPETENCE
WHAT DOES THIS CASE MEAN FOR ME?
If you live in a EU Member state that doesn't allow or provide for same-sex marriage you can get married in another Member state that allows it, but you will have to move there for some time. Because you have moved to another European state, you have exercised your free movement rights. This is a very strong right accorded by the EU that allows you to move freely and without discriminations to other EU states. It is so strong that when you decide to move back to your home country, your new spouse is allowed to join you and your home country is obliged to recognize this same-sex marriage.
A Romanian citizen moved to another European country and married a person of the same sex in this country. After a while he moved back to Romania and wanted his family (his spouse) to come back with him. Romania refused because the country does not recognize same-sex marriages.
The directive 2004/38 (Free movement) does not apply to European citizens in their own State. However, the Romanian citizen had exercised his free movement rights by moving to another European State. If Romania would not recognize his spouse, he would be hindered because of the previous exercise of his free movement rights.
→ This case law protects the rights to come back and not be hindered because of a previous exercise of free movement.
Romania invoked NATIONAL IDENTITY art. 4(2) TFEU as defense.
The CJEU rejected this argument in this value judgement and stated
That they do not ask Romania to reorganize their marital system, which would touch its national identity. BUT only that Romania cannot restrict citizens who have exercised their free movement and want to come back with their family.
!! Although the status of persons is a reserved competence of the MS (§37) the EXERCISE of this reserved competence needs to have due respect of EU principles that follow from the Treaty (§38).