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Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius

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.

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Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius

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  1. Freedom of movement of same-sex families: Addressing current discrimination and gapsSilvan 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 2 Registered partnership 8 No recognition 19

  3. Same-sex families’ legal recognition in 2011 The legal situation today. Marriage equality 7 Registered partnership 12 No recognition 12

  4. Freedom of Movement?

  5. Freedom of movement of same-sex couples FRA Report 2010: Spouses & partners 8 Partners only 7 No recognition 8 Ban on recognition 3 * 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-sexspouses.

  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. SeePETI Petition No. 0283-11

  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 yousilvan@ilga-europe.org

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