Opinion of Advocate General Medina delivered on 17 September 2026.###

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 17 September 2026 (1)

Case C‑449/25

FV

v

Serviciul pentru Imigrări al Judeţului Bihor

(Request for a preliminary ruling from the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania))

( Reference for a preliminary ruling – Directive 2004/38/EC – Article 21(1) TFEU – Right to move and reside freely within the territory of the Member States – Citizenship of the Union – Beneficiaries – Derived right of residence – Third-country national – Prohibition on recognition of civil partnerships entered into abroad – Provision preserving the applicability of free movement rights for Union and EEA citizens – Civil union entered into in another Member State in which neither of the partners has resided – No genuine residence in the host Member State – Creation or strengthening of family life – National constitutional identity – Article 4(2) TEU )

1.        This request for a preliminary ruling from the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania) concerns the refusal to grant a right of residence in the territory of a Member State to a third-country national who is the partner of a national of that Member State, where the two persons have entered into a civil union in another Member State in which neither of them has resided.

2.        The case concerns, in essence, the interpretation of Article 21(1) TFEU and specifically the question whether a Union citizen who travels to another Member State for the sole purpose of entering into a civil union, without establishing residence there, has thereby exercised the right to free movement in a way that entitles that citizen’s partner to a derived right of residence in the Member State of nationality.

I.      Legal context

A.      European Union law

3.        Article 2 of Directive 2004/38, (2) entitled ‘Definitions’, provides:

‘For the purposes of this Directive:

…

2.      “family member” means:

(a)      the spouse;

(b)      the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

…

…’

4.        Article 3 of Directive 2004/38, entitled ‘Beneficiaries’, is worded as follows:

‘1.      This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.      Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

…

(b)      the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

5.        Article 6 of that directive, entitled ‘Right of residence for up to three months’, provides:

‘1.      Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months …

2.            The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.’

6.        Article 7 of Directive 2004/38, entitled ‘Right of residence for more than three months’, states, in paragraphs 1 and 2 thereof:

‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a)      are workers or self-employed persons in the host Member State; or

(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c)      —      are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

—      have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d)      are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2.      The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

7.        Article 16 of that directive, entitled ‘General rule for Union citizens and their family members’, provides, in paragraphs 1 and 2 thereof:

‘1.      Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. …

2.            Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.’

B.      Romanian law

1.      The Civil Code

8.        Under Article 259 of Legea nr. 287/2009 privind Codul civil (Law No 287/2009 establishing the Civil Code; ‘the Civil Code’):

‘1.      Marriage is the union freely consented to of a man and a woman, entered into in accordance with the conditions laid down by law.

2.      A man and a woman shall have the right to marry with a view to founding a family.’

9.        Article 277 of the Civil Code states:

‘1.      Marriage between persons of the same sex shall be prohibited.

2.      Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or foreign citizens shall not be recognised in Romania.

3.      Civil partnerships between persons of the opposite sex or the same sex entered into or contracted abroad by Romanian citizens or by foreign citizens shall not be recognised in Romania. ^[(3)^]

4.      The legal provisions relating to freedom of movement on Romanian territory by citizens of the Member States of the European Union and the European Economic Area shall remain applicable.’

2.      Government Emergency Order No 194/2002

10.      Article 50(1) and (2) of Ordonanța de urgență a Guvernului nr. 194/2002 privind regimul străinilor în România (Government Emergency Order No 194/2002 laying down the rules governing foreign nationals in Romania; ‘Government Emergency Order No 194/2002’) stipulates:

‘1.      Foreign nationals who have entered Romania on a long-stay visa, and those who are exempt from the requirement to obtain a long-stay visa, may have their right to temporary residence extended by the Inspectoratul General pentru Imigrări [(General Inspectorate for Immigration)] or its territorial offices, under the conditions provided for in this section.

2.      The right to temporary residence in Romania may be successively extended for periods of up to one year, only if:

…

(i)      the general conditions set out in this section are met, as well as the special conditions for extending the right of residence depending on the purpose for which it is requested.

…’

11.      Article 62(3) and (3²) of Government Emergency Order No 194/2002 states:

‘3. Foreign nationals who are family members of a Romanian citizen may have their right of residence extended if the Romanian citizen, according to the law, is domiciled or resident in Romania, as follows:

…

b)      for partners, if:

(i)      they submit the child’s birth certificate;

…

3².      Foreign nationals who are family members of Romanian citizens who have been registered with the right of residence in another Member State in that capacity may have their right of residence extended, if:

(a)      they provide proof that they have been registered with a right of residence in another Member State as a family member of a Romanian citizen domiciled or resident in Romania;

(b)      when submitting the application, they submit the following documents:

…

(iii)      documents certifying that they have been registered with the right of residence in another Member State, as a family member of the Romanian citizen;

…’

12.      Article 81(2) of Government Emergency Order No 194/2002 provides:

‘The General Inspectorate for Immigration shall find the stay of foreign nationals to be illegal in any of the following situations:

…

c)      the foreign national does not meet or no longer meets the entry conditions provided for in Article 6 of the Schengen Borders Code or the conditions of entry and/or stay provided for in this Emergency Order;

…’

II.    The dispute in the main proceedings and the question referred for a preliminary ruling

13.      The applicant, FV, is a British national.

14.      On 12 June 2024, FV entered into a same-sex civil union in Italy with GH, a Romanian citizen residing in Romania, in accordance with Italian law. (4) When they entered into the civil union, FV was residing in Australia, and GH was residing in Romania. Neither of them was a resident on the Italian territory.

15.      On 1 January 2025, FV entered Romania to live there with her partner, who is caring for her severely disabled mother.

16.      On 21 February 2025, FV lodged an application with the Serviciul pentru Imigrări al Județului Bihor (Immigration Service of the administrative territory of Bihor (Romania); ‘the Immigration Service’) for an extension of the right of temporary residence for the purposes of family reunification, as under Romanian law the maximum period of residence without a permit was due to expire on 31 March 2025.

17.      On 16 April 2025, the Immigration Service issued a return decision for removal from Romanian territory (‘the return decision’). The return decision stated that, in accordance with Article 81(2)(c) of Government Emergency Order No 194/2002, FV’s stay in Romanian territory had become illegal as of 16 April 2025, such that, under the provisions of Government Emergency Order No 194/2002, (5) FV was obliged to leave Romanian territory and return to the United Kingdom within 30 days of the date of notification of that decision.

18.      The grounds of the return decision stated that FV had not provided evidence that she had the right to reside in another Member State of the European Union as the family member of a Romanian citizen. Nor did she have children with her partner GH.

19.      FV has challenged the return decision before the Curtea de Apel Oradea – Secția de contencios administrativ și fiscal (Court of Appeal, Oradea – Division for Administrative and Tax Matters), as the court of first and last instance. She submits that, on the basis of the case-law of the Court, in particular the judgment in Coman, (6) because same-sex civil partnerships are recognised by a Member State of the European Union, namely Italy, Romania is obliged to recognise, in order to allow the right of free movement and residence to be exercised, family ties lawfully created in another Member State, including those between persons of the same sex. She argues that the return decision taken against her violated her right to family life, as enshrined in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as the right to freedom of movement and residence.

20.      Furthermore, FV submits that the refusal to extend the right of residence on the ground that same-sex civil partnerships are not recognised under national law constitutes indirect discrimination against same-sex couples and claims that the defendant is obliged to issue her with a temporary residence permit for family reunification on the basis of Article 21(1) TFEU, Article 7 of Directive 2004/38, and the judgment in Coman.

21.      The Immigration Service considers the return decision it issued to be lawful. It contends that FV’s circumstances could have fallen into one of two categories, provided for by national legislation in the case of partners. However, her application for extension of the right of residence did not meet the criteria for either category. According to the Immigration Service, the first category for which the right of residence may be extended is provided for in Article 62(3) of Government Emergency Order No 194/2002, which lays down the condition that civil partners must have children together, which is not the case with the applicant and her partner. The second category which could have applied to the applicant is, according to the defendant, provided for in Article 62(3²) of Government Emergency Order No 194/2002, which requires civil partners to be registered with a right of residence in another Member State. However, the applicant has provided no evidence of this.

22.      The referring court considers that the legal and factual circumstances of the present case differ in two respects from the case giving rise to the judgment in Coman where, first, the persons of the same sex were married and, second, both spouses had previously been permanent residents of a Member State other than the country of destination. By contrast, in the present case, FV and her partner have entered into a civil union and were not residing permanently either in the Member State in which they entered into that partnership, or in any other Member State. In that respect, that court observes that it appears from the documents in the case file that Romania is the first Member State in which FV has lived with her partner for a period of 90 days after entering into the civil union.

23.      The referring court also states that FV’s appointed representatives have confirmed before it that FV and GH went to Italy to enter into a civil union because the laws of that Member State allow same-sex civil union, whereas Romanian law does not provide for such a legal arrangement or any other similar arrangement for persons of the same sex.

24.      However, the referring court finds that FV and her partner relied on the Romanian national’s right of free movement, as a citizen of the European Union, in order to go to another Member State – namely Italy – which allows same-sex civil union, a legal act which they could not have carried out in Romania. The national court notes that if FV and her partner had not been persons of the same sex they could have married in Romania, in which case there would have been no reason to refuse to extend FV’s right of residence in Romania.

25.      In those circumstances, the Curtea de Apel Oradea (Court of Appeal, Oradea), decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘In circumstances in which a citizen of the European Union has exercised his or her freedom of movement by going to a Member State other than that of which he or she is a national and entering into a same-sex civil union, under Italian law, with a third-country national, must Article 21(1) [TFEU] be interpreted as precluding the authorities of the Member State of which the European Union citizen is a national from refusing to grant a right of residence in the territory of that Member State to the third-country national on the ground that the law of that Member State does not recognise a civil partnership between persons of the same sex?’

26.      Written observations have been submitted to the Court by the German, Norwegian, and Romanian Governments, as well as the European Commission. All of those parties, and the Danish Government, attended the hearing, which was held on 16 June 2026. With the permission of the Court, FV’s written answers to the questions put by the Court were read out in the presence of the Members of the Court and the parties attending the hearing.

III. Assessment

27.      At the outset, it should be noted that FV challenged the return decision before the referring court. As is apparent from the order of reference, the return decision was the direct consequence of the refusal to extend FV’s right of temporary residence. The Immigration Service found that FV’s stay had become unlawful as of 16 April 2025, after her application for an extension was rejected. The question referred by that court encompasses the compatibility of the conditions underlying the grant of a derived right of residence with EU law, rather than the compatibility of the return decision itself with EU law.

28.      The referring court asks, in essence, whether Article 21(1) TFEU is to be interpreted as precluding the authorities of the Member State of which a Union citizen is a national from refusing to grant a right of residence in the territory of that Member State to a third-country national with whom that Union citizen has entered into a civil union under the law of another Member State in which neither of them has resided, on the ground that the law of the Member State of nationality does not recognise civil unions between persons of the same sex. (7)

29.      Before addressing the issue of whether there is an obstacle to freedom of movement, it is necessary to determine whether GH has exercised free movement rights in a way that entitles FV to a derived right of residence in Romania. That prior question is decisive, as those issues can arise only if Article 21(1) TFEU or, as the case may be, Article 20 TFEU actually applies to the present case.

A.      Whether free movement rights have been exercised in a way that entitles the partner of a Union citizen to a derived right of residence

30.      In the present case, GH, a Romanian national, travelled to Italy for the sole purpose of entering into a civil union with FV, a British national residing in Australia, without establishing residence in Italy. Upon GH’s return to Romania, FV sought a derived right of residence in Romania as GH’s partner. The present case thus concerns a situation where, after having allegedly exercised his or her free movement rights, a Union citizen returns to his or her Member State of nationality and seeks to rely on those rights in order to obtain, for example, a right of residence for his or her partner who is a third-country national. This is commonly referred to as a ‘U-turn’ situation. (8)

1.      Derived rights of residence under Article 21(1) TFEU, with Directive 2004/38 applied by analogy

(a)    The general framework

31.      Article 21(1) TFEU confers on every citizen of the Union the right to move and reside freely within the territory of the Member States, subject to, inter alia, the limitations and conditions laid down in the Treaties. (9) The objective of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on citizens of the Union by that provision. (10) Recital 5 of that directive states that that right should, if it is to be exercised under objective conditions of dignity, also be granted to the family members of those citizens, irrespective of nationality. (11)

32.      Neither Article 21(1) TFEU nor Directive 2004/38 confers any autonomous right on third-country nationals linked to a Union citizen by family or personal ties. Any residence rights conferred on third-country nationals under those provisions are rights derived from the exercise of freedom of movement by the Union citizen concerned. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be liable to interfere with the Union citizen’s freedom of movement. (12)

33.      As regards the legal framework governing those derived rights, there are two distinct categories of third-country nationals referred to in Directive 2004/38 who may benefit from rights in connection with a Union citizen’s exercise of freedom of movement that are relevant in the present case.

34.      The first category, under Article 2(2)(b) of Directive 2004/38, covers the partner with whom the Union citizen has contracted a registered partnership on the basis of the legislation of a Member State, provided that the legislation of the host Member State treats registered partnerships as equivalent to marriage. Where that condition is satisfied, the partner qualifies as a ‘family member’ of the Union citizen and benefits from the full range of rights conferred on family members by that directive. That provision thus covers a situation where the partnership has been legally formalised and is recognised as equivalent to marriage in the host Member State.

35.      The second category, under Article 3(2)(b) of Directive 2004/38, covers the partner with whom the Union citizen has a durable relationship, duly attested, where that relationship does not satisfy the conditions of Article 2(2)(b) of that directive, for instance, because the host Member State does not treat registered partnerships as equivalent to marriage, or because the partnership has not been formally registered. In that case, the partner does not qualify as a ‘family member’ within the meaning of Article 2(2) of Directive 2004/38, but the host Member State is nonetheless required to facilitate his or her entry and residence. Article 3(2)(b) of that directive thus covers a situation where the relationship exists in practice but does not meet the formal legal threshold required for qualification as a family member under Article 2(2)(b) thereof.

36.      Consequently, in order for a family member of a Union citizen to be considered a beneficiary under Article 3 of Directive 2004/38 in either of those two capacities, the Union citizen with whom they have a family or personal connection must first fall within the scope of that directive. (13)

37.      Although Directive 2004/38 aims to facilitate and strengthen the exercise of the right of Union citizens to move and reside freely within the territory of the Member States, the subject matter of that directive concerns, as is apparent from Article 1(a) thereof, the conditions governing the exercise of that right. (14)

38.      The Court has accordingly held that, since, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and since those nationals thus enjoy an unconditional right of residence there, Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he or she is a national. Nor, consequently, is that directive intended to confer, in the territory of that Member State, a derived right of residence on third-country nationals linked to that citizen, as family members within the meaning of Article 2(2) of that directive or to facilitate residence for the partner with whom that citizen has a durable relationship, duly attested, within the meaning of Article 3(2)(b) thereof (together, ‘family members or the partner’). (15)

39.      It follows that, in so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, that is, where he or she has not moved to or does not reside in a Member State other than that of which he or she is a national, (16) a family member or the partner of such a Union citizen is also not covered by that concept for the purpose of obtaining a derived right of residence in that Member State, given that the rights conferred by that directive on his or her family members or partner are not autonomous rights but derived rights, acquired through their connection with the Union citizen who is the beneficiary. (17)

40.      However, the Court has acknowledged that, although third-country nationals who are family members or the partner of a Union citizen cannot rely on Directive 2004/38 to obtain a derived right of residence in the Member State of which the Union citizen is a national, as that directive does not apply in that Member State, they may nonetheless benefit from a derived right of residence on the basis of Article 21(1) TFEU in certain circumstances, namely where the refusal of such a right interferes with the Union citizen’s rights of movement by discouraging him or her from exercising those rights in another Member State. (18)

41.      As has been explained by the Court, when a Union citizen returns to the Member State of which he or she is a national, that is, in a ‘U-turn’ situation, the grant of a derived right of residence to a third‑country national who is a family member or a partner of that Union citizen and with whom that citizen has resided in the host Member State seeks to remove the following obstacle of discouraging the Union citizen from leaving his or her Member State of nationality, by guaranteeing that he or she will be able, upon return to that Member State, to continue the family life which he or she has created or strengthened in the host Member State. (19) The Court has held that, even though Directive 2004/38 does not cover such a return, the conditions for the grant of a derived right of residence in the host Member State to a third‑country national, who is a family member of the Union citizen, should apply by analogy, given that in both cases it is the Union citizen who is the sponsor for such a derived right. (20) The same findings apply in respect of the obligation to facilitate the residence of the partner with whom the Union citizen has a durable relationship, duly attested, as provided for in Article 3(2)(b) of Directive 2004/38.

42.      The Court’s reasoning is based on the principle that two objectively comparable situations are to be treated equally. In both the host Member State situation and the ‘U-turn’ situation, it is the Union citizen who functions as the sponsor through whom the third-country national derives rights of residence. Similarly, in both situations, it is the family life, which was created or strengthened during genuine residence in the host Member State, that must be preserved. Given that EU law requires objectively comparable situations to be treated in the same way, where there is no objective ground justifying a difference in treatment, the conditions governing the grant of a derived right of residence must not, in principle, be stricter in the ‘U-turn’ situation than they are in the host Member State situation. (21)

(b)    The development of the case-law with regard to the ‘U-turn’ situation

43.      The ‘U-turn’ situation first arose in the case giving rise to the judgment in Singh, a case concerning the free movement of persons pursuing an economic activity. (22) In that case, the Court held that a national of a Member State who had worked and resided in another Member State with a third-country national spouse was entitled, upon return to the Member State of nationality, to have that spouse accompany him under conditions at least as favourable as those provided for by EU law, on the ground that the Union citizen might otherwise be deterred from exercising free movement rights in the first place. (23)

44.      That reasoning was subsequently extended in the judgment in Eind (24) to situations where a Union citizen, having exercised free movement rights to pursue an economic activity in another Member State, returns to the Member State of nationality without pursuing any economic activity there. The Court held that that Union citizen could be deterred from leaving his Member State of nationality to work in another Member State if he did not have the certainty of being able to return with a family member, regardless of whether he intended to engage in any economic activity upon that return. (25) The economic nexus established in the judgment in Singh was therefore no longer required, and the rationale for derived rights of residence was grounded exclusively in the ‘useful effect’ of the right of free movement. (26)

45.      Following those judgments, the question arose as to how long the Union citizen and his or her family member would need to reside in the host Member State before returning to the Member State of nationality, in order for the family member to derive a right of residence in the latter Member State. In order to address that question, the Court, in the judgment in O. and B., established the analytical framework for answering this complex issue.

2.      The analytical framework established by the Court in the judgment in O. and B.

46.      The analytical framework established in the judgment in O. and B. is based on two different, albeit interconnected, cumulative conditions, namely genuine residence in the host Member State and family life created or strengthened during genuine residence. Compliance with those two conditions entitles the family member of a Union citizen, who is a third country national, to a derived right of residence in the Member State of nationality. Similarly, that compliance also obliges the Member State of nationality to facilitate residence of the partner with whom the Union citizen has a durable relationship, duly attested, as provided for by Article 3(2)(b) of Directive 2004/38, applied by analogy. (27)

(a)    Genuine residence in the host Member State pursuant to Article 7 or Article 16 of Directive 2004/38

47.      In paragraph 51 of the judgment in O. and B., the Court holds that an obstacle to the exercise of free movement rights ‘will arise only where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’. That formulation (‘will arise only where’) establishes that genuine residence is a necessary condition for the existence of an obstacle to free movement and, consequently, for the existence of a derived right of residence for a family member upon the return of the Union citizen to the Member State of nationality.

48.      The Court then develops that condition by reasoning through two different hypotheses. Under the first hypothesis, (28) where the Union citizen exercises only the rights conferred by Article 6 of Directive 2004/38, that is, residence for a period of up to three months, such as weekends or holidays, such residence does not, in principle, demonstrate any intention to settle in the host Member State in a way that would be such as to create or strengthen family life there. Accordingly, the refusal to grant a derived right of residence upon return will not deter the Union citizen from exercising rights under Article 6 of that directive, and no obstacle arises. The Court further confirms (29) that short periods of residence, even when considered together, fall within the scope of that article and do not give rise to a derived right of residence upon return.

49.      Under the second hypothesis, (30) where the Union citizen exercises the rights conferred by Article 7(1) of Directive 2004/38, that is, residence for a period exceeding three months satisfying the conditions laid down in that provision, that residence is, in principle, evidence of settling in the host Member State and therefore of genuine residence, and goes hand in hand with the creation or strengthening of family life there. It is therefore residence of more than three months under Article 7 of Directive 2004/38, and, a fortiori, permanent residence under Article 16 thereof, (31) that serves as the gateway to a derived right of residence upon return.

50.      It follows from those two different hypotheses that the derived right of residence available to a family member upon the Union citizen’s return can only be as extensive as the rights actually exercised by the Union citizen in the host Member State. Where the Union citizen has exercised only the right of movement, as under Article 6 of Directive 2004/38, no derived right of residence arises upon return. Where the Union citizen has exercised the right of residence, as under Article 7 or Article 16 of that directive, a derived right of residence may arise upon return. The derived right thus mirrors the right exercised by the Union citizen. A fortiori, the same rationale applies in respect of the obligation to facilitate residence set out in Article 3(2)(b) of Directive 2004/38. The Member State of nationality must facilitate residence for the partner with whom a Union citizen has a durable relationship, duly attested, in so far as such a Union citizen has genuinely resided in the host Member State.

(b)    Family life created or strengthened during genuine residence

51.      Where the factual premiss of genuine residence is satisfied, the creation or strengthening of family life during that genuine residence is a further cumulative condition that must be satisfied in order for the obligation to grant a derived right of residence to a third-country family member (or for the obligation to facilitate residence for the partner with whom a Union citizen has a durable relationship, duly attested) upon return to arise. (32) Since that assessment requires the relevant factual elements to be established, it is for the referring court to determine whether that condition is satisfied in the case before it. (33)

52.      Genuine residence in the host Member State during which a Union citizen and his or her family member create or strengthen family life gives rise to the obligation to grant a derived right of residence upon return to the Member State of nationality. Similarly, in respect of the partner with whom the Union citizen created or strengthened family life during genuine residence in the host Member State, compliance with those two cumulative conditions gives rise to the obligation to facilitate residence in the Member State of nationality. The creation and strengthening of family life during genuine residence is an inherent part of the right to free movement and needs to be protected through the removal of the following obstacle: the refusal to grant a right of residence to a third-country national family member or to facilitate residence for the partner in the Member State of nationality, which would be liable to interfere with the Union citizen’s freedom of movement by discouraging him or her from exercising rights of entry into, and residence in, the host Member State, since such refusal would deprive that citizen of the certainty of being able to continue upon return the family life created or strengthened there. Where family life has been neither created nor strengthened during genuine residence, the subject matter that free movement seeks to protect disappears, and with it the basis for granting a derived right of residence to that third-country national (or for imposing the obligation to facilitate residence for that partner) upon return. (34)

53.      That reading was confirmed in the judgment in Altiner and Ravn, (35) where the Court held that the decisive criterion for the grant of a derived right of residence upon the Union citizen’s return is the existence of family life that has been created or strengthened during genuine residence in the host Member State and that has not been interrupted before the return. That judgment confirms that the framework established in the judgment in O. and B. is concerned with the reality of family life actually lived in the host Member State during genuine residence, and not with the mere formal carrying out of a legal act there. All other circumstances are relevant factors in an overall assessment but cannot serve as fixed criteria for an automatic decision. (36)

(c)    Application of that framework in the present case

54.      The analytical framework established in the judgment in O. and B. leads, when applied to the circumstances of the present case, to a straightforward conclusion: it is apparent that neither of the two cumulative conditions of that framework is satisfied.

55.      As regards genuine residence, it appears from the order for reference that GH has not genuinely resided in Italy pursuant to Article 7 of Directive 2004/38 or Article 16 thereof. She travelled to Italy for the sole purpose of entering into a civil union with FV and returned to Romania immediately thereafter, without establishing residence in Italy. As the Court held in the judgment in O. and B., (37) only a period of residence satisfying the conditions set out in Article 7(1) and (2) or Article 16(1) and (2) of Directive 2004/38 gives rise to a derived right of residence upon return, and short periods of residence such as weekends or holidays, even when considered together, fall within the scope of Article 6 of that directive and do not satisfy those conditions.

56.      As regards the creation and strengthening of family life, the brief visit of GH to Italy does not satisfy that condition within the meaning given to that expression in the judgment in O. and B. (38) Although entering into a civil union is a legal act of undoubted personal significance, it is not equivalent to having lived as a family in the host Member State. It is apparent from the order for reference that, at the time the civil union was entered into, GH was domiciled in Romania and FV was domiciled in Australia, and that FV did not arrive in Romania until approximately six months later. The order for reference is otherwise silent on whether GH and FV shared a common life in Italy or developed their family life there in any concrete and material sense. It is therefore for the referring court to establish those facts and to assess, on the basis of all the relevant circumstances, whether family life was actually created or strengthened during GH’s presence in Italy within the meaning of the judgment in O. and B.

57.      In addition, it is apparent from the order for reference that a significant period elapsed between GH’s brief trip to Italy and FV’s arrival in Romania approximately six months later. That circumstance is legally relevant in the light of the judgment in Altiner and Ravn, where the Court held that Member States may verify, before granting a derived right of residence on the basis of Article 21(1) TFEU, whether family life between the Union citizen and the third-country national family member has been interrupted before the entry of that third-country national into the Member State of which the Union citizen is a national. (39)

58.      The Court has previously explained that the discouragement to the exercise of freedom of movement arises from the prospect of the Union citizen not being able, upon returning to his or her Member State of nationality, to continue the ‘family life’ with his or her family members or partner that has been created or strengthened in the host Member State. The Court acknowledges that this ‘family life’ may have come into being in the host Member State as a result of marriage or family reunification, but nonetheless places emphasis on the requirement of developing a family life while in the host Member State that must be protected upon return, rather than on the carrying out of the legal act itself. (40)

59.      The argument that the creation of family life should be understood prospectively, and thus the act of entering into a civil union constitutes an act directed toward a future family life and should therefore suffice, finds no support in the text of the judgment in O. and B. and is in fact directly contradicted by it. Throughout that judgment, the Court’s language is backward-looking: (41) it is concerned with protecting a family life that already exists and has been developed through the exercise of freedom of movement, not with favouring the future development of a family life that has not yet taken shape in the host Member State.

60.      The discouragement rationale operates across two temporal dimensions simultaneously, with the moment of the residence application as the point of reference. Looking backward from that moment, the first question is whether family life has actually been created or strengthened during genuine residence in the host Member State, a question about facts that are either established or not at the time of the application. Looking forward from that same moment, the second question is whether the refusal of a derived right of residence would prevent the continuation of that family life upon return. Those two questions are connected by a third, hypothetical dimension: whether, if the Union citizen had known at the time of departure that the family life to be created during the exercise of freedom of movement would not be protected upon return, he or she might never have left the Member State of nationality at all. Article 21(1) TFEU is designed to neutralise that discouragement, that is, the risk that a Union citizen, faced with uncertainty as to whether the family life created during the exercise of freedom of movement would be protected upon return, might be less inclined to exercise the right of freedom of movement in the first place. (42)

61.      The discouragement rationale presupposes that something concrete has been built during residence in the host Member State that now needs to be protected. A prospective reading would mean that a Union citizen could trigger the protection of Article 21(1) TFEU not by having actually created family life in another Member State, but merely by having taken a legal step that might give rise to family life in the future. That is not what the Court held in the judgment in O. and B., which requires family life to have been actually created or strengthened during genuine residence, which is a backward-looking requirement grounded in facts that have already occurred.

62.      It follows from the absence of genuine residence and creation and strengthening of family life in the host Member State that the circumstances of the present case do not appear to be capable of triggering the application of Article 21(1) TFEU as interpreted by the Court in the judgment in O. and B., and that the refusal to grant FV a derived right of residence in Romania therefore does not constitute an obstacle to the exercise by GH of her free movement rights within the meaning of that provision.

(d)    The requirement of genuine residence as a safeguard for the prerogatives of the EU legislature and national constitutional identity

63.      If the Court were to hold that a brief visit of the kind at issue in the present case could give rise to the application of Article 21(1) TFEU, such a departure from the existing case-law would fundamentally broaden the scope of the law on freedom of movement, thereby reducing the competences retained by the Member States in matters of family law (43) and immigration, (44) both of which fall under the area of freedom, security and justice and thus are shared competences between the Member States and the Union, according to Article 4(2)(j) TFEU. Where the Union citizen has not genuinely exercised free movement rights in a way that creates a real and substantial connection with another Member State, it is for the EU legislature, rather than the Court, to decide whether to confer residence rights on third-country nationals in such situations. It would do so by acting on the legal basis provided by Article 79(2)(a) TFEU or Article 81(3) TFEU and adopting the secondary legislation necessary for that purpose.

64.      In the judgment in Metock, the Court addressed the division of competences as regards measures for bringing about freedom of movement for Union citizens. The Court explained that the Union derives its competence from Articles 18(2) EC, 40 EC, 44 EC and 52 EC, which are the legal bases on which Directive 2004/38 was adopted. (45) These have now been replaced by Articles 21(2) TFEU, 46 TFEU, 50 TFEU and 59 TFEU. The Court further clarified that the EU legislature ‘has competence to regulate … the entry and residence of nationals of non-member countries who are family members of a Union citizen in the Member State in which that citizen has exercised his right of freedom of movement’, ‘where the fact that it is impossible for the Union citizen to be accompanied or joined by his family in the host Member State would be such as to interfere with his freedom of movement by discouraging him from exercising his rights of entry into and residence in that Member State’. (46)

65.      Articles 21(2), 46, 50 and 59 TFEU operate as legal bases in respect of Union citizens who have exercised their freedom of movement by becoming established in a Member State other than their Member State of nationality. As regards purely internal situations, the Court went on to clarify that neither the Treaty provisions on free movement nor the measures adopted to implement those provisions applied. Any difference in treatment between Union citizens who do not exercise their right to free movement and those who do, as regards the entry and residence of their family members, falls therefore outside the scope of the law on freedom of movement and that of EU citizenship. (47)

66.      Outside the realm of the law on freedom of movement and EU citizenship, the EU legislature could act under Article 79(2)(a) TFEU, which governs the conditions for family reunification in respect of third-country national family members of Union citizens returning to their Member State of nationality, or on the basis of Article 81(3) TFEU, which governs family law matters with cross-border implications, but has yet to do so in respect of third-country nationals who are family members or the partner of Union citizens who return to their Member State of nationality. Nevertheless, a derived right of residence for a third-country national in that context cannot be said to have an express legislative foundation in EU law. Therefore, there is no provision of EU law that directly confers a right of residence on a third-country national in that context.

67.      It follows that Article 21(1) TFEU should not be given an interpretation that goes beyond what is strictly necessary to ensure the effectiveness of the free movement rights genuinely exercised. An interpretation that goes further would be encroaching upon the competences retained by the Member States and on the policy choices that the EU legislature may adopt in the future pursuant to Article 79(2)(a) TFEU and/or Article 81(3) TFEU. That is why, in ‘U-turn’ situations, the Court has ruled that the Member State of nationality has an obligation to grant residence rights to third-country nationals who are family members of the Union citizen – or to facilitate residence for a third-country national who is the partner with whom the Union citizen has a durable relationship, duly attested – but only where the Union citizen has exercised the right of free movement by genuinely residing in the host Member State during which he or she has created or strengthened a family life with the family members or partner concerned. (48)

68.      For instance, in the judgment in Coman, the Court limited the competences of the Member State of nationality regarding the admission and residence of third-country nationals who are family members of Union citizens only where it was strictly necessary to ensure the effectiveness of the rights conferred on Union citizens by Article 21(1) TFEU. (49) That limitation has consistently been tied to the existence of a genuine and substantial connection between the Union citizen’s exercise of free movement rights and the situation of the third-country national family member, a connection that the requirement of genuine residence under Article 7 or Article 16 of Directive 2004/38 is designed to ensure. The removal of that requirement would risk extending the reach of EU law into the field of national immigration law beyond what is strictly necessary to ensure the effectiveness of free movement rights.

69.      The threshold of genuine residence, as inferred by the Court in the judgment in O. and B. from the structure and the objectives of Article 21(1) TFEU, thus ensures that the Court’s interpretation of the scope of that provision does not encroach upon the competences that the Treaties reserve to the Member States or entrust to the EU legislature to exercise through the appropriate legislative procedures.

70.      In my view, understood as a threshold, the requirement of genuine residence preserves a meaningful sphere of competence for the Member States in matters such as family law that touch directly upon their constitutional identity. If that threshold were removed and a single brief visit were held to be sufficient to bring a situation within the scope of Article 21(1) TFEU, with Directive 2004/38 applied by analogy, the reach of the EU law on freedom of movement would be extended beyond what is provided for in the Treaties. Effectively, the Member States would be significantly limited in their ability to regulate essential aspects of family law in respect of their own nationals in any situation involving even the most fleeting cross-border element. In addition, the procedural safeguards of Article 81(3) TFEU and the shared competences under Article 4(2)(j) TFEU would be bypassed. The importance of that balance was also acknowledged by the governments participating in the oral hearing, including the Danish, German and Norwegian Governments.

71.      It follows that the analytical framework established in the judgment in O. and B. leads to the conclusion that Article 21(1) TFEU does not apply to the present case. As a result, it does not support the grant of a derived right of residence for FV in Romania on the basis thereof. Nor does it oblige the Romanian authorities to facilitate residence. In order to preserve the allocation of powers between the Court and the EU legislature as well as that between the European Union and the Member States, the requirement of genuine residence should remain good law in the Court’s case-law. The question of whether FV may nonetheless be granted a derived right of residence in Romania must however also be examined on a different legal basis, namely Article 20 TFEU.

3.      Derived rights of residence under Article 20 TFEU

72.      The Court has stated on several occasions that citizenship of the Union is intended to be the fundamental status of nationals of the Member States. (50) It has further held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status. (51)

73.      As a national of a Member State, GH enjoys the status of a Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against her Member State of nationality, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States. (52)

74.      The scope of Article 20 TFEU in situations involving family members who are third-country nationals was first developed in the judgment in Ruiz Zambrano. In that judgment, the Court accepted that denying a third-country national father a right of residence would deprive his minor Union citizen children of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens, since it would cause them to leave the territory of the European Union as a whole. (53)

75.      In the judgment in Dereci, the Court clarified that the deprivation of the genuine enjoyment of the substance of Union citizenship rights corresponds to a situation in which the Union citizen has, in fact, to leave the territory of the Union as a whole, and described that situation as exceptional. (54) It further held that the mere desire to preserve family unity within the territory of the Union is not sufficient, in itself, to permit the conclusion that the Union citizen would be compelled to leave if a derived right of residence were refused to the family member concerned. (55)

76.      It should be noted in that regard that the case-law concerning Article 20 TFEU referred to above was developed in the context of cases concerning minor children who are Union citizens and who are dependent on a third-country national parent. In the judgment in K.A. and Others (Family reunification in Belgium), the Court established that, unlike minors and a fortiori minors who are young children, adults are, as a general rule, capable of living an independent existence apart from the members of their family. It follows that the identification of a relationship of dependency between two adult members of the same family, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the family member on whom he or she is dependent. (56)

77.      It follows from those judgments, read together, that Article 20 TFEU may be relied upon in situations where Union citizens reside in the Member State of which they are nationals and have never exercised their right of free movement, provided that a genuine connection with EU law exists by reason of the risk that the Union citizen would be compelled to leave the territory of the Union as a whole. Following the judgment in Safi, that threshold is not limited to compelled departure from the Union as a whole but extends to situations where the Union citizen would be compelled to leave the Member State of which he or she is a national in order to accompany the third-country national to another Member State, provided that this relocation would either prevent the continuation of family life with both parents or be contrary to the best interests of the child. (57)

78.      The threshold for establishing a breach of Union citizenship rights under Article 20 TFEU on the ground that a derived right of residence has been refused is, however, high. It is met only where a relationship of dependency between the Union citizen and the third-country national is established on the basis of a concrete and individual assessment of all the relevant circumstances of the case. As the Court indicated in the judgment in Chavez-Vilchez and Others, that assessment must take into account all relevant factors, including in particular the question of custody, the legal, financial and emotional ties between the parties, and the risks which separation might entail. (58)

79.      The case-law establishes that the required relationship of dependency exists where the Union citizen would have no real choice but to follow the third-country national if the latter were required to leave, typically because the third-country national is the primary carer of a minor Union citizen, as in the judgment in Ruiz Zambrano and the judgment in Safi.

80.      In the present case, no such relationship of dependency exists, though it is for the national court to establish whether that is the case on the basis of all the relevant circumstances. GH is an adult who has chosen to enter into a civil union with FV, but there are no indications in the file presented to the Court of her being dependent on FV in the sense required by the case-law, and a refusal of residence to FV would therefore not compel, as a matter of practical necessity, GH to leave Romania or the Union. The wish to live together as a couple, however understandable, does not meet the threshold established in the judgment in Dereci. (59)

81.      On the basis of the information available in the order for reference, the present case does not disclose any relationship of dependency capable of bringing the situation within the scope of Article 20 TFEU as interpreted in the judgment in Ruiz Zambrano, the judgment in Dereci, and the judgment in Safi. The present case therefore does not fall within the scope of Article 20 TFEU.

4.      Whether the Charter applies autonomously to the present case

82.      With regard to the argument that the return decision taken against FV violated her right to family life as enshrined in Article 7 of the Charter, (60) it must be borne in mind that the provisions of the Charter are addressed to the Member States only when they are implementing EU law, as defined in Article 51(1) thereof. (61)

83.      It is now settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement those rules cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State. (62) Union citizenship, established by Article 20 TFEU, is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with EU law. Any discrimination which nationals of a Member State may suffer under the law of that State falls within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State. (63)

84.      In the judgment in Coman, the Court had established an obstacle to the free movement of persons before proceeding to assess compliance with the fundamental rights enshrined in the Charter, because the national measures at issue were to be regarded as implementing EU law within the meaning of Article 51(1) thereof. The Charter does not, however, apply to an internal situation in which no such obstacle has been established. For the reasons set out above, the present case does not fall within the scope of the citizenship provisions of the Treaty, since GH has not established genuine residence in Italy, and her movement alone is not sufficient to give rise to derived rights of residence for FV, who is a third-country national, in GH’s Member State of nationality. Since the situation does not fall within the scope of EU law, the Charter is not applicable.

85.      That said, this does not mean that the fundamental rights of GH and FV, in particular their right to a family life, are left unprotected. As the Court ruled in the judgment in Dereci, ‘if [the referring court] takes the view that [their] situation is not covered by [EU] law, it must undertake that examination in the light of Article 8(1) [ECHR]’. (64)

5.      Interim conclusion

86.      As regards Directive 2004/38, that directive is not intended to govern the residence of a Union citizen in the Member State of which he or she is a national and is therefore not applicable to the situation at hand.

87.      As regards Article 21 TFEU, GH has not exercised free movement rights in a way that entitles FV, who is a third-country national, to a right of residence in GH’s Member State of nationality. GH has travelled to Italy briefly for the sole purpose of entering into a civil union, without establishing genuine residence there within the meaning of Article 7 or Article 16 of Directive 2004/38, and without creating or strengthening family life in that Member State in the concrete sense required by the case-law.

88.      As regards Article 20 TFEU, the threshold established in the judgment in Ruiz Zambrano, as clarified in the judgment in Dereci and extended in the judgment in Safi, is not met. No relationship of dependency of the kind recognised in the case-law appears to exist between GH and FV. GH is an adult who has chosen to enter into a civil union with FV, but she is not dependent on FV in the sense required by the case-law.

89.      The threshold conditions for the applicability of Article 21(1) TFEU, with Directive 2004/38 applied by analogy, and of Article 20 TFEU are not met. FV’s application for a derived right of residence therefore does not fall within the scope of those provisions.

B.      Alternative analysis: whether the refusal to grant a derived right of residence constitutes an obstacle

90.      The following analysis is conducted solely for the sake of completeness, should the Court find, contrary to the conclusion reached above, that GH has exercised her free movement rights in a way that brings the application of the derived right of residence of FV within the scope of Article 21(1) TFEU. Only in that event would it then be necessary to examine whether the refusal by the Romanian authorities to grant FV a derived right of residence in Romania constitutes an obstacle to the exercise by GH of her free movement rights within the meaning of Article 21(1) TFEU.

1.      Derived rights of residence in accordance with Article 3(1) of Directive 2004/38, applied by analogy

91.      As I have explained above, in cases of return falling under Article 21(1) TFEU, the provisions of Directive 2004/38 apply by analogy. (65) The grant of a derived right of residence in the Member State of origin has been recognised, in accordance with Article 3(1) of Directive 2004/38, only in respect of third-country nationals who are ‘family members’ of the Union citizen within the meaning of Article 2(2) of that directive. A third-country national who is not a family member of a Union citizen therefore does not benefit from a derived right of residence under Article 21(1) TFEU. (66)

92.      According to the case-law of the Court, the situation of same-sex spouses may be covered by the concept of family member within the meaning of Article 2(2)(a) of Directive 2004/38. (67) However, that case-law cannot be extended to registered partnerships. (68) Unlike the concept of ‘spouse’ in Article 2(2)(a) of that directive, which the Court held in the judgment in Coman to be gender-neutral and be defined by reference to the laws of the Member State where marriage was lawfully entered into (or recognised), the concept of ‘registered partner’ in Article 2(2)(b) thereof expressly makes classification as a ‘family member’ conditional upon the legislation of the host Member State treating registered partnerships as equivalent to marriage. The two provisions therefore operate differently: the concept of ‘spouse’ is defined by reference to the laws of the Member State where marriage was lawfully entered into (or recognised), whereas the condition of registered partnership being equivalent to marriage is left to the laws of the host Member State exclusively. It follows that the rationale underpinning the judgment in Coman cannot be applied by analogy to the present case.

93.      When Directive 2004/38 is applied by analogy in a ‘U-turn’ situation, the following legal fiction applies: Romania, the Member State of nationality, assumes the role of the host Member State for the purposes of free movement. It is therefore Romanian law that determines, under Article 2(2)(b) of that directive applied by analogy, whether the civil union entered into by GH and FV in Italy qualifies as a registered partnership treated as equivalent to marriage, and whether FV thereby qualifies as a family member of GH. Since under Article 259(1) of the Civil Code, marriage is defined as the union freely consented to of a man and a woman, and since, under Article 277(1) of that code, marriage between persons of the same sex is prohibited, FV and GH cannot contract a marriage in Romania. Moreover, under Article 277(3) of the Civil Code, civil partnerships between persons of the opposite sex or the same sex entered into or contracted abroad are not recognised in Romania. Since Romanian law does not recognise civil partnerships between persons of the same sex as equivalent to marriage, FV is not covered by the concept of family member within the meaning of Article 2(2) of Directive 2004/38 as applied by analogy in the present case. It is however for the referring court to verify the precise legal status of a same-sex civil union entered into in Italy under Romanian law, and in particular whether it qualifies as a registered partnership within the meaning of Article 2(2)(b) of Directive 2004/38.

94.      That conclusion does not, however, exhaust the analysis. The Court has consistently held that, where a third-country national does not qualify as a family member within the meaning of Article 2(2) of Directive 2004/38, that conclusion does not preclude examination of whether a more limited obligation to facilitate entry and residence may nonetheless arise.

2.      Derived rights of residence in accordance with Article 3(2)(b) of Directive 2004/38, applied by analogy

(a)    The obligation to facilitate entry and residence

95.      In the judgment in Banger, the Court held that, although an unregistered partner of a Union citizen did not qualify as a family member within the meaning of Article 2(2) of Directive 2004/38, Article 21(1) TFEU, read in conjunction with Article 3(2)(b) of that directive applied by analogy, required the Member State of nationality to facilitate the provision of a residence authorisation to that partner. (69) The Court ruled that a third-country national having a durable relationship, duly attested, with a Union citizen who has exercised free movement and residence rights and who returns to his or her Member State of nationality, must not, upon that return, be subject to less favourable treatment than that provided for under Directive 2004/38 for a third-country national having such a relationship with a Union citizen exercising free movement rights in a Member State other than that of which he or she is a national. (70) A decision refusing a residence authorisation to such a partner must moreover be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons. (71)

96.      In the judgment in SM (Child placed under Algerian kafala), (72) the Court held that, since the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, such a child cannot be regarded as a ‘direct descendant’ of a Union citizen for the purposes of Article 2(2)(c) of Directive 2004/38. (73) The Court nonetheless went on to consider whether the child was covered by the concept of ‘other family members’ referred to in Article 3(2)(a) of that directive, under which Member States are required, in accordance with their national legislation, to facilitate entry and residence for any other family members who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence. (74)

97.      Therefore, in the context of a ‘U-turn’ situation under Article 21(1) TFEU, Article 3(2)(b) of Directive 2004/38 applies by analogy, meaning that the Member State of nationality must facilitate the entry and residence of the partner with whom the Union citizen has a durable relationship, duly attested. (75) In that respect, the Court has held that Article 21(1) TFEU must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the grant of a residence permit to the unregistered partner, a third-country national, with whom that Union citizen has a durable relationship, duly attested, where that Union citizen, having exercised his right of free movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the Member State of which he is a national in order to reside there. (76)

98.      In the present case, the fact that FV does not qualify as a family member within the meaning of Article 2(2)(b) of Directive 2004/38 as applied by analogy in the present case does not preclude examination of whether Article 21(1) TFEU, read in conjunction with Article 3(2)(b) of that directive applied by analogy, requires Romania to facilitate the entry and residence of FV as the partner with whom GH has a durable relationship, duly attested.

99.      Furthermore, the facilitation obligation under Article 3(2)(b) of Directive 2004/38 is not only a procedural requirement, but also imposes on Member States a substantive obligation to confer a certain advantage on applications submitted by the third-country nationals referred to in that provision, compared with applications for entry and residence of other third-country nationals. (77) In order to fulfil that substantive obligation, Member States must provide for the possibility for the persons concerned to obtain a decision on their application that is based on a thorough examination of their personal situation, taking account of all relevant factors, and that, in the event of refusal, is duly reasoned. (78) In that regard, Member States cannot rely on the fact that the possibility of demonstrating a durable relationship is not provided for under their national law for same-sex partners. According to well-established case-law, Member States must, in the exercise of their competence in matters of civil status, respect EU law and, in particular, the freedom conferred on every Union citizen to move and reside within the territory of the Member States. (79) It follows that a civil status legally established in another Member State in the exercise of free movement rights must be taken into account by the Member State of nationality, even where that Member State’s law does not recognise the institution in question, for the specific and limited purpose of giving effect to the rights conferred by EU law. (80)

100. Despite the margin of appreciation available to Member States, national legislation must therefore contain criteria that are consistent with the ordinary meaning of the word ‘facilitate’ in Article 3(2) of Directive 2004/38 and that do not deprive that provision of its effectiveness. (81)

101. Moreover, for the purposes of this alternative analysis, the obligation to ‘facilitate’ set out in Article 3(2) of Directive 2004/38 applies by analogy, meaning that in the exercise of that margin of appreciation, the Member State of nationality is implementing EU law within the meaning of Article 51(1) of the Charter. (82) Accordingly, that Member State must exercise it in compliance with the provisions of the Charter. In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights, in accordance with Article 52(3) of the Charter, the rights guaranteed by Article 7 thereof have the same meaning and the same scope as those guaranteed by Article 8 ECHR. (83) It is apparent from the case-law of the European Court of Human Rights that the relationship of a same-sex couple may be covered by the concept of ‘private life’ and that of ‘family life’ in the same way as would the relationship of an opposite-sex couple in the same situation. (84)

102. It follows that the automatic rejection of an application for residence on the sole ground that a civil union between persons of the same sex is not recognised under the law of the Member State of nationality is incompatible with the obligation to facilitate entry and residence under Article 3(2)(b) of Directive 2004/38, applied by analogy in the ‘U-turn’ situation. That obligation requires Member States to assess applications on a case-by-case basis, taking account of all relevant circumstances of the personal situation of the persons concerned, and to provide duly reasoned decisions in the event of refusal. A blanket refusal based solely on the non-recognition of the civil union under national law deprives Article 3(2)(b) of that directive of its practical effect and is incompatible with the ordinary meaning of the word ‘facilitate’, read in the light of Article 7 of the Charter and Article 8 ECHR.

103. Moreover, the requirements imposed by Article 62 of Government Emergency Order No 194/2002 appear difficult to reconcile with Article 21(1) TFEU as interpreted by the Court, irrespective of the sexual orientation of the couple concerned.

(b)    The three levels of potential incompatibility of the national legislation with EU law

104. First, as regards the prior residence requirement laid down in Article 62(3²)(b)(iii) of Government Emergency Order No 194/2002, that provision makes the extension of the right of residence of a third-country national who is the partner of a Romanian citizen conditional on the production of documents certifying that that third-country national was previously registered with a right of residence in another Member State as a family member of that Romanian citizen.

105. It follows that the requirement laid down in Article 62(3²)(b)(iii) of Government Emergency Order No 194/2002, whereby the third-country national must have been formally registered with a right of residence in another Member State as a family member of the Romanian citizen, imposes a condition that goes beyond what is required by the wording of Article 3(2)(b) of Directive 2004/38 and the case-law. Indeed, that provision only requires it to be demonstrated that the Union citizen and his or her partner, who is a third-country national, have a ‘durable relationship, duly attested’. However, it does not require documents certifying that that partner was previously registered with a right of residence in another Member State as a family member of the Union citizen. Therefore, Article 62 of Government Emergency Order No 194/2002 imposes additional requirements that are nowhere to be found in Article 3(2)(b) of Directive 2004/38.

106. That requirement is moreover difficult to reconcile with the judgment in Metock, where the Court held that the enjoyment of a derived right of residence cannot be made conditional on the third-country national having previously resided lawfully in another Member State. (85)

107. In the present case, FV resided in Australia at the time the civil union was entered into, and travelled to Romania approximately six months after GH’s return, without having previously resided in any other Member State as GH’s partner. Even if FV and GH were to demonstrate that they have a ‘durable relationship, duly attested’, the application of Article 62(3²)(b)(iii) of Government Emergency Order No 194/2002 therefore has the effect of automatically excluding FV from any possibility of obtaining a right of residence in Romania solely on account of the lack of any prior formally registered residence in another Member State, a condition that is incompatible with the judgment in Metockand that deprives the obligation to facilitate entry and residence of its practical effect.

108. Second, as regards the children condition laid down in Article 62(3)(b)(i) of that emergency order, that provision makes the extension of the right of residence of a third-country national who is the partner of a Romanian citizen conditional upon on the production of a child’s birth certificate, thereby requiring that the partners have a child in common. Again, that condition is nowhere to be found in the wording of Article 3(2)(b) of Directive 2004/38. Moreover, Article 10(2) of Directive 2004/38 provides an exhaustive list of the documents which third-country nationals who are family members of a Union citizen may be required to present in order to be issued with a residence card, and does not provide for the possibility of requiring documents certifying either prior lawful residence in another Member State or the birth of a common child. Those requirements therefore go beyond what is permitted by Directive 2004/38, applied by analogy in the ‘U-turn’ situation, and are incompatible with Article 21(1) TFEU as interpreted in the judgment in Metock.

109. Third, beyond the two potential incompatibilities identified above, which arise regardless of the sexual orientation of the couple concerned, the combined effect of Article 62 of Government Emergency Order No 194/2002 and Article 277 of the Civil Code gives rise to a further and distinct incompatibility with the principle of non-discrimination on grounds of sexual orientation, enshrined in Article 21(1) of the Charter. As mentioned above, (86) in this alternative analysis, the Member State of nationality is implementing EU law within the meaning of Article 51(1) of the Charter, namely in exercising its margin of appreciation under Article 3(2)(b) of Directive 2004/38 applied by analogy.

110. As the referring court itself observes in the order for reference, (87) had GH and FV been an opposite-sex couple, they could have contracted a marriage in Romania (or in another Member State), and there would have been no reason to refuse FV a right of residence. The reason they were unable to do so, and were therefore compelled to travel to Italy to enter into a civil union, is precisely that Romanian law prohibits same-sex marriage under Article 277(1) of the Civil Code and refuses recognition of same-sex civil partnerships entered into abroad under Article 277(3) thereof. (88) The combined effect of those two provisions and of Article 62 of Government Emergency Order No 194/2002 is to place same-sex couples in a structurally different and significantly worse position than opposite-sex couples: whereas the latter can marry in Romania and thereby satisfy the conditions for family reunification, the former are denied that option entirely and are left with no realistic avenue for obtaining recognition of their relationship or family reunification rights under Romanian law.

111. Article 277(4) of the Civil Code does not resolve that discriminatory effect, in particular in the context of the ‘U-turn’ situation involving Romanian nationals. While it preserves the applicability of free movement rights for Union and EEA citizens, it does not itself create any mechanism for the recognition of same-sex relationships entered into by Romanian nationals who have exercised their right to free movement. That reading is confirmed by the judgment in Coman, (89) where the Court, in interpreting Article 21(1) TFEU, did not consider that Article 277(4) of the Civil Code resolved the problem or neutralised the obstacle identified. On the contrary, in the light of that judgment, Romania was required to recognise the marriage for the specific purpose of granting a derived right of residence, precisely because Article 277(4) of the Civil Code preserves the applicability of Article 21(1) TFEU, which is what required recognition in the first place. Accordingly, the structural disadvantage to which same-sex couples are subject under Romanian national law persists, and it is in that respect that the positive obligation under Article 7 of the Charter, read in the light of Article 8 ECHR, remains relevant in the event that the Court finds EU law to be applicable in the present case.

112. The structural disadvantage described above, whereby same-sex couples are placed in a significantly worse position than opposite-sex couples and are left without any realistic avenue for obtaining recognition of their relationship or family reunification rights under Romanian national law, appears difficult to reconcile with the principle of non-discrimination on grounds of sexual orientation enshrined in Article 21(1) of the Charter, read in the light of Article 7 of the Charter and Article 8 ECHR. As the Court stated in the judgment in Coman (90) and reaffirmed in the judgment in Wojewoda Mazowiecki, (91) the relationship of a same-sex couple is covered by the concept of private and family life in the same way as would that of an opposite-sex couple in the same situation. Moreover, as the Court confirmed in the judgment in Wojewoda Mazowiecki, (92) drawing on the judgments of the European Court of Human Rights in Fedotova and Others v. Russia (93) and in Przybyszewska and Others v. Poland (94) and Formela and Others v. Poland, (95) Article 8 ECHR now imposes on Member States a positive obligation to establish a legal framework providing for the legal recognition and protection of same-sex couples.

113. A distinction must be drawn in that regard between a Member State’s choice not to introduce same-sex marriage or civil unions into its domestic legal order, which falls within its competence and may be protected by Article 4(2) TEU as an expression of its national constitutional identity, and the denial of any form of legal recognition or protection to same-sex couples. The former falls within the competence of the Member States; the latter does not, since it constitutes a breach of the positive obligation imposed by Article 7 of the Charter, read in the light of Article 8 ECHR, as confirmed by the Court in the judgment in Wojewoda Mazowiecki. (96)

114. It follows that, in the event that the Court finds EU law applicable to the request for a derived right of residence in the present case, the national measures at issue appear difficult to reconcile with Article 21(1) TFEU and Article 21(1) of the Charter, read in the light of Article 7 thereof. In particular, the prior residence requirement and the children condition laid down in Article 62 of Government Emergency Order No 194/2002 go well beyond what those provisions require. Moreover, the combined effect of that Article 62 and Article 277 of the Civil Code creates a structural disadvantage specific to same-sex couples, who are left without any realistic avenue for obtaining legal recognition of their relationship or family reunification rights under Romanian national law, in contrast to opposite-sex couples who retain the option of contracting a marriage in Romania (or in another Member State). Those issues would be for the referring court to assess in the light of the foregoing considerations.

115. I should further note that no grounds have been put forward before the Court by the Romanian Government to justify the alleged obstacle to the exercise by GH of her free movement rights, in the event that such an obstacle were to be found to exist.

116. This alternative analysis does not, however, affect the principal conclusion, which is that the present case does not fall within the scope of Article 20 and Article 21(1) TFEU.

117. On the basis of the foregoing considerations, I propose that the following answer be given to the question referred to the Court:

Article 20 and Article 21(1) TFEU, with Directive 2004/38 applied by analogy, must be interpreted as not precluding the authorities of the Member State of which a Union citizen is a national from refusing to grant a right of residence in the territory of that Member State to a third-country national with whom that Union citizen has entered into a civil union under the law of another Member State, on the ground that the law of the Member State of nationality does not recognise civil unions between persons of the same sex, where the Union citizen has neither genuinely resided in the Member State in which the civil union was entered into nor demonstrated any intention of settling there in a way that would be such as to create or strengthen family life in that Member State, and where there is no relationship of dependency between the Union citizen and the third-country national of such a nature that a refusal of residence would, in practice, compel the Union citizen to leave the territory of the Union as a whole or the Member State of nationality.

IV.    Conclusion

118. In the light of all the foregoing considerations, I am of the view that the question referred by the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania) should be answered as follows:

Article 20 and Article 21(1) TFEU, with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC applied by analogy,

must be interpreted as not precluding the authorities of the Member State of which a Union citizen is a national from refusing to grant a right of residence in the territory of that Member State to a third-country national with whom that Union citizen has entered into a civil union under the law of another Member State, on the ground that the law of the Member State of nationality does not recognise civil unions between persons of the same sex, where the Union citizen has neither genuinely resided in the Member State in which the civil union was entered into nor demonstrated any intention of settling there in a way that would be such as to create or strengthen family life in that Member State, and where there is no relationship of dependency between the Union citizen and the third-country national of such a nature that a refusal of residence would, in practice, compel the Union citizen to leave the territory of the Union as a whole or the Member State of nationality.

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1      Original language: English.

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2      Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

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3      Text provided by the Romanian Government.

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4      The Civil Code uses the term ‘civil partnerships’, whereas GH and FV entered into a civil union in Italy under Italian law. Therefore, in this Opinion, the term ‘civil union’ refers to the legal relationship entered into by GH and FV in Italy, while the term ‘civil partnership’ is used when referring to the concept as appears under Romanian law or in the case-law of the Court.

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5      The order for reference cites Article 83(1) of Government Emergency Order No 194/2002, as well as Article 88(1) and (3)(b) thereof.

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6      Judgment of 5 June 2018, Coman and Others, C‑673/16, ‘the judgment in Coman’, EU:C:2018:385.

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7      A similar question arises in pending Case C‑237/26, PMLP, where the referring court has asked whether a Member State may refuse to recognise a marriage contracted between two of its nationals of the same sex in another Member State of the European Union, on the ground that its national law does not allow same-sex marriage, in circumstances where the persons concerned had not resided in that other Member State either before or after the marriage was contracted, but where one of those persons has a close connection with it and where they travelled there for the sole purpose of marrying. Unlike the present case, which concerns derived rights of residence, that case concerns the recognition of civil status.

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8      The term ‘U-turn’ originated in the context of the EU’s fundamental freedoms (such as freedom of establishment) and is used to describe the structural pattern of a national relying on a fundamental freedom to create a cross-border element, often precisely so as to ‘return’ and rely on EU law against their own Member State’s national rules. See Wouters, J., PhD thesis (K.U. Leuven, 1996), discussing ‘U-bochtconstructies en misbruik van communautaire rechten’ (U-turn constructions and abuse of Community rights) in the context of establishing companies; Looijestijn-Clearie, A., ‘Centros Ltd – A Complete U-Turn in the Right of Establishment for Companies’, Vol. 49, International & Comparative Law Quarterly, 2000, pp. 621 to 642. It was only later that the same ‘U-turn’ label was applied to citizenship case-law, where it was used to describe the analogous pattern of an EU citizen exercising his or her freedom of movement abroad and then returning home while seeking to preserve rights (such as family reunification) acquired during that period abroad.

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9      See, to that effect, judgment of 14 November 2017, Lounes (C‑165/16, ‘the judgment in Lounes’, EU:C:2017:862, paragraph 45).

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10      The judgment in Coman, paragraph 18, and judgment of 12 March 2014, O. and B. (C‑456/12, ‘the judgment in O. and B.’, EU:C:2014:135, paragraph 35).

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11      See the judgment in Lounes, paragraph 31, and judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraphs 31 and 33 and the case-law cited.

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12      See, to that effect, judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 67 and 68), and of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraph 35).

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13      Judgment of 15 November 2011, Dereci and Others(C‑256/11, ‘the judgment in Dereci’, EU:C:2011:734, paragraph 55).

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14      See, to that effect, the judgment in Lounes, paragraph 36; the judgment in O. and B., paragraph 41; and judgment of 5 May 2011, McCarthy (C‑434/09, ‘the judgment in McCarthy’, EU:C:2011:277, paragraph 33).

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15      See, to that effect, the judgment in Lounes, paragraph 37; the judgment in O. and B., paragraphs 42 and 43; and the judgment in McCarthy, paragraphs 29, 34 and 42.

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16      That said, other provisions of Directive 2004/38, such as Article 4 thereof, which governs the right of exit, may nonetheless apply to Union citizens residing in their Member State of nationality and to their family members or partner.

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17      See, to that effect, judgments of 2 October 2025, NiZzA (C‑573/24, EU:C:2025:747, paragraph 42), and of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 22 and the case-law cited).

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18      See, to that effect, the judgment in Coman, paragraph 23; the judgment in Lounes, paragraph 46; the judgment in O. and B., paragraph 44; and judgment of 10 May 2017, Chavez-Vilchez and Others (C‑133/15, EU:C:2017:354, paragraph 54).

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19      The judgment in O. and B., paragraph 49.

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20      Ibid., paragraph 50.

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21      Ibid.

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22      Judgment of 7 July 1992 (C‑370/90, EU:C:1992:296).

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23      Ibid., paragraph 19.

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24      See judgment of 11 December 2007, Eind (C‑291/05, EU:C:2007:771).

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25      Ibid., paragraph 35. In paragraph 36 of that judgment, the Court adds that ‘that deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification.’

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26      Judgment of 7 July 1992 (C‑370/90, EU:C:1992:296). See judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraph 70), and of 11 December 2007, Eind (C‑291/05, EU:C:2007:771, paragraphs 32, 35 and 36).

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27      See, to that effect, the judgment in Coman, paragraph 24, and the judgment in O. and B., paragraphs 51 to 54.

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28      Paragraph 52.

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29      Paragraph 59.

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30      Paragraph 53.

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31      Paragraph 55.

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32      Paragraph 54 of the judgment in O. and B. is framed in conditional terms and is normative in character: ‘where, during the genuine residence of the Union citizen in the host Member State … family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires …’.

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33      Paragraph 57 of the judgment in O. and B.

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34      Paragraph 54. Some authors even claim that the decisive criterion for retaining a right of residence upon return to the home Member State of the Union citizen is not the duration of residence but whether residence in the host Member State is ‘such as to create or strengthen family life in that Member State’, and more than three months of residence in the host Member State in accordance with the conditions laid down in Article 7 of Directive 2004/38 could then give rise to a presumption that family life has been created or strengthened, rather than being a precondition therefor (Kroeze, H., ‘Chapter 10 Distinguishing between Use and Abuse of EU Free Movement Law: Evaluating Use of the “Europe-route” for Family Reunification to Overcome Reverse Discrimination’, in Cambien, N., Kochenov, D. and Muir, E. (eds), European Citizenship under Stress: Social Justice, Brexit and Other Challenges, Brill Nijhoff, Leiden, 2020, pp. 222 to 270; available at: https://doi.org/10.1163/9789004433076_011).

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35      Judgment of 27 June 2018  (C‑230/17, ‘the judgment in Altiner and Ravn’, EU:C:2018:497).

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36      Ibid., paragraphs 30 to 33.

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37      Paragraph 59.

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38      It would therefore be worth noting that the French-language version of that judgment (‘développer ou consolider’) supports a reading of the concept of ‘created or strengthened’ that requires there to be a process of gradual development of family life during genuine residence, rather than the instantaneous creation of a legal bond, and that that reading is consistent with the overall logic of the framework established in the judgment in O. and B., which is concerned with protecting family life actually lived in another Member State, not family life that is merely formalised there.

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39      Paragraph 31.

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40      Judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraph 70); of 11 December 2007, Eind (C‑291/05, EU:C:2007:771, paragraphs 35 and 36); and the judgment in O. and B., paragraph 54.

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41      Paragraph 56 of that judgment speaks of the Union citizen having ‘lived as a family’ with the third-country national in the host Member State, and the answer given in paragraph 61 thereof refers to a Union citizen who ‘has created or strengthened a family life’ during genuine residence there.

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42      In that regard, reference may be made to the earlier discussion of the discouragement rationale in points 40 to 44 above.

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43      Article 81(3) TFEU provides that measures concerning family law with cross-border implications are to be established by the Council acting unanimously after consulting the European Parliament, a procedural requirement reflecting the sensitivity of family law and the primacy of national competence in that field. That provision also contains a passerelle clause allowing the Council, acting unanimously and subject to a national Parliament veto, to determine that certain aspects of family law with cross-border implications may instead be the subject of acts adopted by the ordinary legislative procedure. Pursuant to Article 81(1) TFEU, that competence is moreover directed at judicial cooperation in civil matters having cross-border implications; pursuant to Article 81(2) TFEU, it covers in particular the mutual recognition and enforcement of judgments, the compatibility of rules concerning conflict of laws and of jurisdiction, and the elimination of obstacles to the proper functioning of civil proceedings. The structure of the Treaties thus reflects a deliberate choice to leave the definition of family relationships principally to the Member States, subject only to the limits that the EU law on freedom of movement imposes on the exercise of that competence where a Union citizen has genuinely exercised free movement rights in a way that creates a real and substantial connection with another Member State.

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44      Article 79(2)(a) TFEU empowers the Union to adopt measures concerning the conditions of entry and residence of third-country nationals, including for the purposes of family reunification.

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45      Judgment of 25 July 2008, Metock and Others (C‑127/08, ‘the judgment in Metock’, EU:C:2008:449, paragraph 61).

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46      The judgment in Metock, paragraphs 63 and 65, emphasis added.

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47      The judgment in Metock, paragraphs 73, 77 and 78. It should be noted that the reference in paragraph 78 of that judgment to ‘the scope of Community law’ should be understood in context as referring to the scope of Directive 2004/38, since that judgment concerns the interpretation of that directive.

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48      See the judgment in O. and B., paragraphs 56 and 57.

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49      Mr Coman and Mr Hamilton had lawfully resided together in Belgium for more than three months and lived together as a family before returning to Romania.

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50      Judgment of 8 March 2011, Ruiz Zambrano(C‑34/09, ‘the judgment in Ruiz Zambrano’, EU:C:2011:124, paragraph 41 and the case-law cited).

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51      See the judgment in McCarthy, paragraph 47, and the judgment in Ruiz Zambrano, paragraph 42.

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52      See the judgment in McCarthy, paragraph 48.

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53      See the judgment in Ruiz Zambrano, paragraphs 42 and 44.

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54      Ibid., paragraph 67.

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55      The judgment in Dereci, paragraph 68.

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56      Judgment of 8 May 2018, C‑82/16, EU:C:2018:308, paragraph 65.

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57      Judgment of 4 June 2026, Staatssecretaris van Justitie en Veiligheid (C‑147/24, ‘the judgment in Safi’, EU:C:2026:442, paragraphs 51, 53 and 57 to 63).

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58      See judgment of 10 May 2017 (C‑133/15, EU:C:2017:354, paragraphs 68 and 69).

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59      It is apparent from the order for reference that GH resides in Romania where she cares for her severely disabled mother. It could therefore be argued that GH is caught between her obligation to care for her mother in Romania and her wish to live with FV, and that a refusal of residence to FV would place GH in an impossible personal situation. While that circumstance illustrates the difficult personal situation in which GH finds herself, it does not establish the relationship of dependency that Article 20 TFEU aims to protect, as established by the case-law.

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60      See paragraph 11 of the order for reference. Article 6(1) TEU and Article 51(2) of the Charter further clarify that the provisions of the Charter do not extend the powers of the Union as defined in the Treaties.

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61      See judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 17).

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62      The judgment in Metock, paragraph 77, and judgment of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 33).

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63      See, to that effect, the judgment in Metock, paragraph 77.

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64      The judgment in Dereci, paragraph 72.

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65      See point 41 above.

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66      Judgment of 12 July 2018, Banger (C‑89/17, ‘the judgment in Banger’, EU:C:2018:570, paragraph 34).

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67      The judgment in Coman, paragraphs 33 to 35.

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68      The judgment in Coman, paragraph 36.

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69      See paragraphs 30 to 33.

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70      Paragraph 32.

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71      Paragraph 41.

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72      Judgment of 26 March 2019 (C‑129/18, EU:C:2019:248).

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73      Paragraph 56.

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74      See paragraphs 57 and 58.

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75      See, to that effect, the judgment in Banger, paragraph 33.

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76      Ibid., paragraph 35.

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77      Judgment of 26 March 2019, SM (Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraph 61 and the case-law cited).

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78      Ibid., paragraph 62 and the case-law cited.

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79      The judgment in Coman, paragraph 38, and judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 32).

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80      The judgment in Coman, paragraph 45, and judgment of 8 June 2017, Freitag (C‑541/15, EU:C:2017:432, paragraph 46).

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81      See, to that effect, judgment of 26 March 2019, SM (Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraph 63), and the judgment in Banger, paragraph 40 and the case-law cited.

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82      See judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 17).

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83      See Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17).

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84      Judgments cited in paragraph 50 of the judgment in Coman. See ECtHR, 7 November 2013, Vallianatos and Others v. Greece, CE:ECHR:2013:1107JUD002938109, § 73, and ECtHR, 14 December 2017, Orlandi and Others v. Italy, CE:ECHR:2017:1214JUD002643112, § 143.

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85      Paragraph 58.

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86      See point 101 above.

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87      Paragraph 29.

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88      Article 277(3) of the Civil Code refuses recognition of all civil partnerships entered into abroad, whether between same-sex or opposite-sex couples, and is therefore ostensibly neutral. However, its practical effect is not neutral. For opposite-sex couples, the absence of recognition of a foreign civil partnership does not leave them in a legal vacuum, since they retain the option of contracting a marriage in Romania, which Romanian law fully recognises. For same-sex couples, by contrast, Article 277(1) of that code prohibits marriage altogether and Article 277(3) thereof refuses recognition of foreign civil partnerships, with the result that such couples have no legal avenue in Romania through which to obtain any form of recognition of their relationship.

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89      See paragraphs 39, 40 and 51.

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90      Paragraph 50.

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91      Judgment of 25 November 2025, Wojewoda Mazowiecki (C‑713/23, ‘the judgment in Wojewoda Mazowiecki’,EU:C:2025:917, paragraph 65).

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92      Paragraph 66.

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93      ECtHR, 13 July 2021, CE:ECHR:2021:0713JUD004079210, § 152.

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94      ECtHR, 12 December 2023, CE:ECHR:2023:1212JUD001145417, § 104.

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95      ECtHR, 19 September 2024, CE:ECHR:2024:0919JUD005882812, § 29.

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96      Paragraph 66.