https://doi.org/10.21697/2023.23.3-02
The article presents the legal status of the spouse of a migrating European Union citizen in the light of the provisions of 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. Under the directive, the concept of spouse only covers
a person married to a European Union citizen and is sex neutral. Member States are obliged to recognize a same-sex marriage concluded in one of the Member States in accordance with the law of that State, but only for the purposes of granting a derived right of residence to a third-country national. The right of residence of the spouse of a migrating Union citizen is derived and flows from the right of movement granted to the migrating Union citizen directly by the TFEU. As the Directive applies in cross-border situations, a spouse can only enforce the rights arising from it if the Union citizen to whose family he belongs exercises his right
to move. In accordance with the Zambrano formula developed in the case law of the Tribunal, Article 20 TFEU precludes national provisions which would have the effect of depriving Union citizens of the effective exercise of the substance of the rights conferred on them by virtue of their status as Union citizens, the right to reside in the territory of the Union.
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