1. Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius
Seminar on free movement of same-sex families
European Parliament, 3 May 2011

2. Same-sex families’ legal recognition in 2004
The legal situation when the Freedom of Movement Directive was adopted 7 years ago.
Marriage equality
Registered partnership 8
No recognition

3. Same-sex families’ legal recognition in 2011
The legal situation today.
Marriage equality
Registered partnership 12
No recognition

4. Freedom of Movement?

5. Freedom of movement of same-sex couples
FRA Report 2010:
Spouses & partners
Partners only
No recognition
Ban on recognition
* France unclear
By comparison, this map would be entirely dark blue for different-sex spouses.

6. Current recognition problems
Non-recognition of ‘gay marriage’ by various Member States
There is no such thing as ‘gay marriage’. All marriages are contracted under the same marriage laws.
Therefore, non-recognition of marriages of same-sex partners = direct discrimination (sexual orientation).
Registered partnership institutions vary across the EU
Most registered partnership laws do not have a mechanism to recognise foreign registered partnerships
There is no European harmonisation framework
Bulgaria, Romania and Estonia ban recognition in their domestic law.

7. (i) Partners

8. Discriminatory non-recognition of civil status
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.
Comparator important in discrimination cases. No such questions are raised about the civil status of different-sex spouses.

9. Discriminatory non-issuance of civil status
In Poland and Estonia (and maybe 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.
See PETI Petition N° 632/2008

10. Discriminatory inheritance tax
60% inheritance tax rate as registered partners were considered unrelated

11. (ii) Children

12. Discriminatory non-recognition of children
LIBE Committee: “What about children of same sex couples?”
Cyprus Government: “The Cyprus legislation doesn´t recognise same sex partners as «other» family members of the union citizen”
Questionnaire towards Report of 24 March 2009 on the application of Directive 2004/38/EC
Two adopted children of same-sex spouses resident in Brussels (one Greek national) were not recognised in Greece and were rendered de facto orphans. Court reasoning:
“unmarried people are not allowed to adopt in Greece”
“Greek society is not yet ready to accept a child with two fathers”
60% inheritance tax rate as registered partners were considered unrelated

13. Impact of parents’ non-recognition
Kaisa (Finnish) and Claire (French) officially registered their PACS in France in 2004 and have two children. Claire is not recognised as a second parent in France and she cannot adopt her children in Finland either.
Outcome:
Claire is only a legal guardian with very limited rights.
As a result, their children cannot:
(1) inheriting property and belongings from their second parent and her family;
(2) using her surname;
(3) having French citizenship and a French passport like her.
See PETI Petition No

14. What role for the EU?

15. Sexual orientation discrimination is prohibited
Extract from 2010 Report on the Application of the EU Charter of Fundamental Rights (pg. 44)

16. Addressing the discrimination
The EU needs to ensure legal certainty and portability of civil status
End indirect Member States’ bans on marriages/ registration or adoption in other Member States
Respect of EU legislation: Art 10 and Art 19 TFEU and Art 21 of the Charter with regard to sexual orientation
Parity before the law for different-sex and same-sex couples
Ensure the best interest of children regardless of the sexual orientation of parents

17. Commissioner for Fundamental Rights
“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]

18. Thank you silvan@ilga-europe.org