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What is the role of EU law?

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. What is the role of EU law?. Let me remind you of a few principles… Treaties: Articles 21(1) and 49 (TFEU)

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What is the role of EU law?

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  1. Free Movement for LGBT families in the EUNew steps are needed!ILGA-Europe’s contributionJoël Le Déroff – Senior Policy & Programmes Officer – 6 February 2013

  2. 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)

  3. 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

  4. Context: same-sex families’ legal recognition (2013)

  5. 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.

  6. 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.

  7. 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”.

  8. 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.

  9. 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.

  10. Action (1): application of the EU legislation Current state of play • 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).

  11. 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]

  12. 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.

  13. 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.

  14. 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.

  15. Thank you for your attention!

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