The Frankstein of EU Legislation The Free Movement of LGBT Families EP Intergroup on LGBT Rights

1. The Frankstein of EU LegislationThe Free Movement of LGBT FamiliesEP Intergroup on LGBT Rights Dr. Jorrit Rijpma 6 March 2012

2. Four different angles Free Movement of EU citizens • 3 situations: married, registered, partnered • Definition of “spouse” in Directive 2004/38 • Primary EU law Fundamental Rights General Principles / Charter of Fundamental Rights Free Movement Provisions read in the light of Fundamental Rights EU Private International law (AFSJ)

3. Restrictions approach Importance of recognition of civil status (documents) Importance of being accompanied by a partner/spouse Fundamental Status of EU Citizenship (and the genuine enjoyment thereof) (Absence of) Justifications

4. Restrictions approach The case for mutual recognition over an autonomous interpretation or the host-country rule Entry and Residence Rights Equal Treatment (Art. 24 of Directive 2004/38 and Art. 18 TFEU)

5. Fundamental Rights 1) Right to Privacy (“Right to Relate”) 2) Right to Family Life (Schalk & Kopf) 3) Right to Human Dignity (Cf. California, SA) 4) Right to Equal Treatment 5) Best Interest of the Child 3) and 4) self-standing rights under CFR

6. Fundamental Rights European HR law does not require “gay marriage”, but does grant important protection In any case ECJ is not a human rights court. BUT: situations falling within scope of EU law deserve protection of FR as matter of EU law

7. The legislative “solution” There is an obvious need for legal certainty and protection of LGBT couples A solution would lie in a consistent application of the EU rules on free movement (read in the light of Fundamental Rights) The EU legislator turns to the AFSJ. If all fails one of the Courts may eventually have to step in. What is taking it so long?

8. “A young love, of two ladies of a certain age”