36Next, it should be noted that, whereas, for the purpose of determining whether a partner with whom a Union citizen has contracted a registered partnership on the basis of the legislation of a Member State enjoys the status of ‘family member’, Article 2(2)(b) of Directive 2004/38 refers to the conditions laid down in the relevant legislation of the Member State to which that citizen intends to move or in which he intends to reside, Article 2(2)(a) of that directive, applicable by analogy in the present case, does not contain any such reference with regard to the concept of ‘spouse’ within the meaning of the directive. It follows that a Member State cannot rely on its national law as justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state.
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