Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius
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www.ilga- europe.org 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
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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. Same-sex families’ legal recognition in 2004. - PowerPoint PPT Presentation
Transcript of Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius
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Freedom of movement of same-sex families: Addressing current discrimination and gapsSilvan Agius
Seminar on free movement of same-sex familiesEuropean Parliament, 3 May 2011
www.ilga-europe.org
Same-sex families’ legal recognition in 2004
Marriage equality 2
Registered partnership 8
No recognition
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The legal situation when the Freedom of Movement Directive was adopted 7 years ago.
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Same-sex families’ legal recognition in 2011
Marriage equality 7
Registered partnership 12
No recognition
12
The legal situation today.
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Freedom ofMovement?
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Freedom of movement of same-sex couples
Spouses & partners 8
Partners only 7
No recognition
8
Ban on recognition 3
* France unclear
FRA Report 2010:
By comparison, this map would be entirely dark blue for different-sex spouses.
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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.
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(i)Partners
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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.
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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
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Discriminatory inheritance tax
60% inheritance tax rate as registered partners were considered unrelated
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(ii)Children
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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
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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. 0283-11
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What role for the EU?
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Sexual orientation discrimination is prohibited
Extract from 2010 Report on the Application of the EU Charter of Fundamental Rights (pg. 44)
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Addressing the discrimination
The EU needs to ensure legal certainty and portability of civil statusEnd 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 orientationParity before the law for different-sex and same-sex couplesEnsure the best interest of children regardless of the sexual orientation of parents
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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 RedingDiscrimination of same-sex married or in civil-partnership couples (debate)
7 September 2010, European Parliament [Strasbourg]
