Same sex and cohabitation rights

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Transferability of marriages and civil partnerships across the EU
“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.” Vivianne Reding, EU Commissioner

Context

Over 2011, European Alternatives is organising a deliberative consultation with citizens and stakeholders in a sample of six EU countries on transeuropean issues relating to the area of Justice, Security and Freedom contained in the Stockholm Programme (2010-2014).  The consultations will be taking place in the UK, France, Italy, Bulgaria, Spain and Romania, but citizens from throughout Europe will be involved.

Gay rights and in particular mutual recognition of existing forms of partnerships (including for straight couples) across the EU is one of the six topics around which citizens’ panels will be organised.

These consultations are imagined to decline a specific set of shared demands at a European level in the areas of citizens’ rights, leading to specific actions, including the possibility of a Citizens’ Initiative.

Political and institutional framework

In a majority of EU countries (17 out of 27) gay couples can celebrate their permanent unions or regulate their cohabitation. This takes different forms, including full marriage equality, civil partnerships, or regulation of cohabitation rights. Due to the economic interconnectedness of the EU countries, the phenomenon of same-sex couples needing to relocate to another country that does not recognise their union has become widespread.
The EU Charter of Fundamental Rights makes it clear that “the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”. However, there are at least four articles of the EU Charter of Fundamental Rights that the current fragmentation of gay rights in Europe violates:

• Article 9: everyone has the right to respect for his or her private and family life
• Article 15: every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State
• Article 24.3: every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests
• Article 33: the family shall enjoy legal, economic and social protection

Furthermore, the Treaty of the European Union (amended most recently by the Lisbon Treaty) states:

• Article 3.2: The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured (…)

This right is not currently fully respected for people in civil partnerships: if they move to seek work in other countries of the European Union, they may end up losing their rights if their partnership is not recognized. This can be particularly serious if one of the partners becomes ill or dies, or in case of a dispute over property, for example.

For this reason, while a call for regulation of gay partnerships in the whole of the EU would be desirable but beyond its competences, focusing on one relatively small issue like the mutual recognition of all types of unions, may be a more achievable first-step. This said, the history of the European Union has been marked by a series of relatively small steps towards integration that have led to inevitable further integration. Our effort toward this specific single-issue campaign is moved by the awareness that this is a starting point and not just a final goal.

The Stockholm Programme

Section 2.3 of the Stockholm Programme specifies that measures to fight discrimination and homophobia should “be vigorously pursued”. Moreover, section 3.1.2 highlights how “mutual recognition should be extended to fields that are essential to everyday life, e.g. […] matrimonial property rights”. There is therefore a favourable legal and political framework within which to place a campaign for the recognition of all forms of partnerships across the EU.

Citizens’ Initiative

The Lisbon Treaty introduces the possibility of the European Citizens’ Initiative. The treaty provides that “not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties”. Online signatures will be considered valid. The current proposals are that signatures will have to come from a minimum of 9 EU countries for the initiative to be valid.

The way forward

European Alternatives is looking to collaborate with partner organisations and individual activists around Europe to organise a series of transnational deliberative consultations aimed at producing a join European demand and setting up the necessary coalition to carry through that demand.

This may include submitting a Citizens’ Initiative to the European Commission, requesting officially legislate over mutual recognition of all forms of existing marriages, partnership and cohabitation rights across the EU. While aware of the challenge that the 1 million figure represents, a well-organised coordination across all 27 member states and an alliance with political parties, individual MEPs, local, national, transnational NGOs as well as a strategy based on social media and viral communication, could make this challenge achievable.