Free Movement for LGBT families in
the EU
New steps are needed!
ILGA-Europe’s contribution
Joël Le Déroff – Senior Policy & Programmes Officer – 6 February 2013
www.ilga-europe.org
What is the role of EU law?
Let me remind you of a few principles…
Treaties: Articles 21(1) and 49 (TFEU)
Treaties: Article 10 TFEU, Article 21 of the Charter
Directive 2004/38/EC: Recital 6 (family unity “in a broad
sense”)
Directive 2004/38/EC: Recital 31 (non-discrimination)
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Context: same-sex families’ legal recognition (2004)
The legal situation when
the Freedom of Movement
Directive was adopted 7
years ago.
Marriage equality
2
Registered partnership 8
No recognition
19
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Context: same-sex families’ legal recognition (2013)
www.ilga-europe.org
Context: European Court of Human Rights
Recent case-law (2010-2013) changes the legal context
Note: this is mentioned in the Commission’s 2010 report on the application of the
Charter
Kozak v. Poland (2010): de facto marital cohabitation must be
understood to also include same-sex relationships. Poland
violated Article 14 and 8 (respect for private and family life)
by not doing so.
Schalk and Kopf v. Austria (2010): a cohabiting same-sex
couple living in a stable relationship falls within the notion of
‘family life’, just as the relationship of a different-sex couple in
the same situation would.
X and others v. Austria (2013): prohibiting adoption of the
partner’s child in a same-sex couple is discriminatory.
www.ilga-europe.org
On the basis of the legal and political
context:
A full application of existing EU legislation is needed, on the
basis of an inclusive interpretation (Directive 2004/38/EC,
definition of family members).
More legislative initiative are welcome to facilitate freedom of
movement, they cannot be discriminatory.
This MUST happen because not doing so would be politically
inacceptable, AND because that would not be legal anyway.
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Action (1): application of the EU legislation
The concepts used in Directive 2004/38/EC
The spouse and the partner with whom the Union citizen has
contracted a registered partnership (depending on legislation of host
Member State) - Article 2 (2) (a) and (b).
The direct descendants who are under the age of 21 and the
dependent relatives and those of the spouse or partner –
Article 2 (2) (c).
Article 3 (1): the Directive applies to all EU citizens and their
family members who accompany or join them.
Article 3 (2): Member States shall also “facilitate entry and
residence” of any other family members, and of the partner
with whom the EU citizen has a durable relationship duly
attested. Denial shall be possible only if justified after an
“extensive examination of the personal circumstances”.
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Action (1): application of the EU legislation
FRA Report 2011:
Spouses & partners
8
Partners only
7
No recognition
8
Ban on recognition
3
* France unclear
By comparison, this map
would be entirely dark blue
for different-sex spouses.
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Action (1): application of the EU legislation
Many Member States do not recognise same-sex spouses’
civil status, including many Member States were registered
partnerships have been introduced.
Many Member States do not recognise same-sex registered
partnerships, including other Member States were registered
partnerships have been introduced.
In Poland and Estonia (and to some extent in other countries
too) the public registry does not issue civil status documents
to single adults who intend to enter into a marriage or
registered partners with a person of their same sex in another
EU Member State.
www.ilga-europe.org
Action (1): application of the EU legislation
Current state of play
o
o
o
o
The low quality of the transposition has been acknowledged
various times:
European Commission report (December 2008);
Parliament, Valean report (24 March 2009);
FRA report 2011 on homophobia, transphobia and
discrimination;
Many infringement procedures on various points of the
Directive.
There is a lack of political will to pressure Member States in
order to achieve a better implementation (e.g. Commission
interpretation guidelines of 2009).
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What does the Commissioner for Fundamental
Rights say?
“Let me stress this. If you live in a legally-recognised
same-sex partnership, or marriage, in country A, you
have the right – and this is a fundamental right – to take
this status and that of your partner to country B. If not, it
is a violation of EU law, so there is no discussion about
this. This is absolutely clear, and we do not have to
hesitate on this.”
Viviane Reding
Discrimination of same-sex married or in civil-partnership couples (debate)
7 September 2010, European Parliament [Strasbourg]
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Action (2): more and better EU legislation!
Current state of play
The proposed regulations on matrimonial property regimes
(for married couples and couples in partnership), proposed by
the Commission in March 2011.
The European Parliament as been calling for more initiatives
in that field (Berlinguer report 23 November 2010).
The Stockholm programme and the Commission’s work
programmes mention initiatives in the area of mutual
recognition of civil status documents.
www.ilga-europe.org
Action (2): more and better EU legislation!
ILGA-Europe’s approach
ILGA-Europe is favourable to a general approach: mutual
recognition for all forms of civil status documents, inspired by
the EU passports.
• Civil status documents delivered by Member States would become EU
civil status documents with an EU-wide value;
• This would not force Member State to completely harmonise all their
legislation.
• A need to be pragmatic in the case of civil documents that do not exist
in all Member States (e.g. registered partnership).
ILGA-Europe warns against the choice of a case-to-case
approach. Such an approach could in fact make life even more
complex, allowing citizens to solve some administrative
problems but preventing them to address others.www.ilga-europe.org
Action (2): more and better EU legislation!
ILGA-Europe’s approach
Examples of potential problems in case only some civil status
documents are mutually recognised (based on real cases).
One thing that ILGA-Europe would never accept: that new
legislative proposals establish a difference between same-sex
and different-sex couples (e.g. in the case of mutual
recognition of marriages). This would be illegal and
discriminatory.
www.ilga-europe.org
Thank you for your attention!
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