The Frankstein of EU Legislation The Free Movement of LGBT Families EP Intergroup on LGBT Rights

Leiden University. The university to discover.

The Frankstein of EU LegislationThe Free Movement of LGBT

Families

EP Intergroup on LGBT Rights

Dr. Jorrit Rijpma 6 March 2012


Four different anglesFree Movement of EU citizens-3 situations: married, registered, partnered-Definition of “spouse” in Directive 2004/38-Primary EU law

Fundamental RightsGeneral Principles / Charter of Fundamental Rights

Free Movement Provisions read in the light of Fundamental Rights

EU Private International law (AFSJ)


Restrictions approachImportance of recognition of civil status (documents)

Importance of being accompanied by a partner/spouse

Fundamental Status of EU Citizenship(and the genuine enjoyment thereof)

(Absence of) Justifications


Restrictions approachThe case for mutual recognition over an autonomous interpretation or the host-country rule

Entry and Residence Rights

Equal Treatment (Art. 24 of Directive 2004/38 and Art. 18 TFEU)


Fundamental Rights1) Right to Privacy (“Right to Relate”)

2) Right to Family Life (Schalk & Kopf)

3) Right to Human Dignity (Cf. California, SA)

4) Right to Equal Treatment

5) Best Interest of the Child 3) and 4) self-standing rights under CFR


Fundamental RightsEuropean HR law does not require “gay marriage”, but does grant important protection

In any case ECJ is not a human rights court.

BUT: situations falling within scope of EU law deserve protection of FR as matter of EU law


The legislative “solution”There is an obvious need for legal certainty and protection of LGBT couples

A solution would lie in a consistent application of the EU rules on free movement (read in the light of Fundamental Rights)

The EU legislator turns to the AFSJ.

If all fails one of the Courts may eventually have to step in. What is taking it so long?


“A young love, of two ladies

of a certain age”

The Frankstein of EU Legislation The Free Movement of LGBT Families EP Intergroup on LGBT Rights

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