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) 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)

Context: same-sex families’ legal recognition (2004) Marriage equality 2 Registered partnership 8 No recognition 19 The legal situation when the Freedom of Movement Directive was adopted 7 years ago.

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

Context: European Court of Human Rights Recent case-law ( ) 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.

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.

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”.

Action (1): application of the EU legislation Spouses & partners 8 Partners only 7 No recognition 8 Ban on recognition 3 * France unclear FRA Report 2011: By comparison, this map would be entirely dark blue for different-sex spouses.

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.

Action (1): application of the EU legislation Current state of play The low quality of the transposition has been acknowledged various times: o European Commission report (December 2008); European Commission report o Parliament, Valean report (24 March 2009);Valean report o FRA report 2011 on homophobia, transphobia and discrimination; FRA report 2011 o 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).Commission interpretation guidelines of 2009

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]

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 The European Parliament as been calling for more initiatives in that field (Berlinguer report 23 November 2010).Berlinguer report The Stockholm programme and the Commission’s work programmes mention initiatives in the area of mutual recognition of civil status documents.

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.

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.

Thank you for your attention!