A case for mutual recognition Silvan Agius, Policy Director, ILGA-Europe LGBT Intergroup meeting 21 st October 2010, European Parliament (Strasbourg)

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Presentation transcript:

A case for mutual recognition Silvan Agius, Policy Director, ILGA-Europe LGBT Intergroup meeting 21 st October 2010, European Parliament (Strasbourg)

“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 ]

1 EU Legal Framework

Freedom of movement Directive 2004/38/EC regulates the right of citizens of the EU and their family members to move and reside freely within its territory. It does not differentiate between different-sex and same-sex couples. In practice, however,...  MSs respect the right to freedom of movement  MSs recognise the civil status of different-sex couples  Social security is guaranteed under Reg. 1408/71  Many MSs do not respect the right to freedom of movement  Host MSs feel free to base their recognition of the civil status of same-sex couples on its form of legal recognition or otherwise  Host MSs only provide social security when they recognise same-sex couples as equal to different-sex couples

2 National Legal Recognition

Legal recognition in 2004 Marriage equality 2 Registered partnership 8 No recognition 19 The legal situation as was when Freedom of Movement Directive was adopted.

Legal recognition in 2010 Marriage equality 7 Registered partnership 12 No recognition 12 The legal situation today.

Likely further developments Marriage equality 11 Registered partnership 10 No recognition 10 The legal situation if current national debates progress ahead as expected.

3 Snapshot of Current Situation

What problems are there? [1] CY, EE, EL, IE, IT, LI, LV, LT, MT, PL, SI, SK (and maybe others): Still in conflict with the entry and residence criteria when applied to same-sex partners. Romania: Art 277 of the Civil Code (2009) prohibits domestic same-sex couple recognition, and prohibits recognition of marriages/partnership registered elsewhere. Poland: Refused on various occasions to provide copies of civil status documents to Polish nationals who were going to enter a partnership in another MS.

What problems are there? [2] Rights of the child: Children born to same-sex partners often loose the link to one of their parents when moving from one EU MS to another. Pensions and Social Security: Regulation 1408/71 is still silent about same-sex partners and their children. Social security remains therefore only regulated by the host MS.

What solutions are there? France: Following various problems in recognition of same-sex partners’ civil status*, in 2009 France changed its domestic legislation to recognise other EU registered partnerships to the level of its PACs. Luxembourg: Followed suit in United Kingdom: UK entered into bilateral discussions with other MSs that had registered partnerships to ensure recognition of its nationals’ civil partnerships. * Mostly UK civil partners. Problems included 60% inheritance tax amongst others.

Why should EU play a role? A number of MSs still disregard the obligations posed by Dir 2004/38/EC. Domestic legislators have drawn different forms of recognition with different entitlements. MS often argue that non-domestic partnerships and ‘not equivalent’. Growth in legal recognition since 2004 has not been followed by mutual recognition of civil status.

4 Proposals for Mutual Recognition

What should the EU do? Monitor and enforce Dir 2004/38/EC’s provisions. Launch study on obstacles on recognition of civil status. Provide for legal certainty of civil status through the adoption of a European Authentication Act. Take same-sex partners into account in the implementation of the mutual recognition provisions in the Stockholm Programme. Take same-sex partners into account when applying the newly adopted strategy to ensure respect for EU Charter of Fundamental Rights.

Thank you! … ‘ifs’ and ‘buts’ at border control?