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Freedom of Movement in Europe

EXTRACT FROM ILPA EUROLETTER MAY 2006

New residency rights – including provisions for LESBIAN & gay couples – are immediately applicable despite being implemented in ONLY five of the 25 EU countries.

“The main provision is that you can recognise marriages or partnerships only when the hosting country has similar provisions”, said Frattini. “In those cases where there is no direct obligation to recognise, member states must facilitate entry and residence of partners in a durable relationship after a concrete assessment. This new provision will facilitate the situation of gay couples across Europe.”

Campaigners at the International Lesbian and Gay Association (ILGA) regard the directive as a “partial victory”.  ILGA is concerned that full recognition and rights for registered same-sex partners is only applicable between countries with similar legislation. “Facilitation does not imply any obligation to recognise”, said a spokesman. “We are preparing to test the legislation and see how the EU courts will go”.

EU officials reveal that “there were very difficult discussions with member states” over the issue of registered partnerships. Some countries such as Spain or the Netherlands have introduced same-sex civil partnerships, or marriages, that are controversial in countries such as Frattini ’s native Italy. Capitals opposed to gay partnerships must now carry out, on request, an investigation and grant full rights to partners if the relationship is “real”.

“With two people in a durable relationship, that may not be a registered partnership in the host country, the member state has to facilitate. The right is not given but it does mean member states have an obligation to assess”, said an EU official.

Brussels is asking EU capitals to inform relevant authorities that national courts and tribunals will be expected to interpret national law in the light of the directive.

With thanks for ILGA-Europe for this newsletter.

 

European Parliament accepts Council decision on free movement

On 19 February 2004 the Citizens' Rights Committee of the European Parliament adopted without amendment a second-reading report that recommended the acceptance of the Council's common position on the right to move and reside freely within the EU. Likely to pass through Plenary, the directive will come into force on 1 July 2005.

In its first reading of the directive in February 2003 the Parliament had adopted a draft that would have truly respected the right to free movement for all families. The final text falls significantly short of these initial gains. Though symbolically important as the first official acknowledgment of the existence of registered same-sex couples it confers no substantive new rights to LGBT people and their families. The Parliament's cautious stance vis-à-vis family diversity however, does not necessarily signal fading support for LGBT rights amongst Europe's parliamentarians. Underlying the decision are pragmatic considerations: fierce opposition in Council, the accession of the ten new member states in May and the Parliament elections in June all have contributed to the judgment that in the current political climate this was the best compromise attainable.

"The decision falls short of the expectations of many who do not want to see political pragmatism prevail over the fundamental values of equality in the European Union", states ILGA-Europe Co-Chair Riccardo Gottardi. "It was a unique opportunity to create a coherent approach to the recognition of the diversity of family relations in Europe which we failed to take. Nevertheless, this is a crucial first step toward the full recognition of our families in the EU and an important milestone from which we will move on in the years to come".

The struggle for a full recognition of same-sex families will continue. The directive is but the first stage. It has opened the door to legal action at both national and European level, a step numerous gay and lesbian couples are taking already to fight for full equality.


Background Information

The directive aims to consolidate, strengthen and clarify existing EU legislation in the area of free movement. Under the directive, the right to free movement would primarily remain limited to a "spouse" and the children of either the spouse or the sponsor. Whether or not this includes same-sex spouses is not clearly defined but will be ultimately for the European courts to resolve. Registered partners would only enjoy the right to free movement if the host country 'treats registered partners equivalent to married couples'. Currently this would cover a maximum of seven of the future twenty-five member states: Denmark, Sweden, Finland, the Netherlands, Belgium and possibly Germany and France. Registered partners moving to states that do not treat registered partners as equivalent to married couples and unmarried partners, regardless of where they are moving to or from have no automatic right to free movement. The directive does make provisions, stating that member states "shall facilitate" entry and residence of such individuals, but the meaning is blurry and would - again - depend on case-law interpretation.

The official title of the directive is: Amended Proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

With thanks for ILGA-Europe for this newsletter.

EUROPEAN PARLIAMENT ENDORSES PROGRESSIVE DEFINITION OF FAMILY

Same-sex immigration rights within the European Union received a considerable boost by a vote in the European Parliament on the 11/02/03. The Parliament approved amendments to a proposed new European law which defines "spouse" to include unmarried same sex partners for the purpose of moving freely within the EU in certain circumstances. Full details are set out in a Press release from ILGA, a summary of the debate and the text of the amendments all of which are set out below. These changes will only become law if the Council of Ministers agree. To maximise the chances of this, it is crucial that EU national governments are properly informed and aware of the effects of the current position on so many of their citizens.

If agreed they will come into force in mid 2004.

ILGA-Europe Media Release, Brussels, 11th Feb 2003 

Crucial victory in the recognition of same-sex partnerships - European Parliament endorses progressive definition of family in vote on free movement directive COM (2001) 257.

Today, the European Parliament voted on the revised proposals for a new directive on the right of citizens and their family members to move and reside freely within the EU (COM (2001) 257). The directive aims to consolidate, strengthen and clarify existing EU legislation in this area, thus reducing the administrative burdens hindering free movement between member states. With 269 votes in favour, 225 against and 46 abstentions, the European Parliament adopted the Commission's proposal including the amendments suggested by the LIBE Committee (Committee on Citizens' Freedoms and Rights, Justice and Home Affairs. 

By adopting the principle of mutual recognition to same sex partnerships in the context of free movement, the European Parliament has taken up the core demands put forward by ILGA-Europe in its advocacy efforts. As ILGA-Europe co-chair Kurt Krickler states: "If this directive will pass through the Council as it now stands, it will have vital repercussions for gays, lesbians, bisexuals and transgendered people throughout the European Union. By broadening the concept of family to also include same-sex spouses, registered partners and other unmarried partners living in a durable relationship, it would remove the main obstacles hindering LGBT citizens from exercising their right of residence and free movement. Whilst today, a gay couple registered in Germany, for instance, is not able to move to Italy and maintain their status as a legally recognised couple, the new directive would change that". 

"Though the vote today was an important first step toward the recognition of same sex partnerships in the EU, we are only half-way there", adds ILGA-Europe executive director Ailsa Spindler. "It is great to see that the majority of the European Parliament supports a more progressive definition of 'family' that goes beyond traditional marriage. We now have to maintain this positive momentum to ensure that this broader definition of family members is endorsed by the Council as well. The free movement directive is subject to co-decision, i.e. both Parliament and Council have to agree for it to become law. But with the majority of member states already having some sort of recognition of same-sex couples, we are optimistic that the directive will be passed as it now stands". 

Report on the proposal for a European Parliament and Council directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 

(COM(2001) 257 - C5-0336/2001 - 2001/0111(COD)) 
Doc.: A5-0009/2003 
Procedure : Codecision procedure (1st reading)
Debate : 10.02.2003 
Vote: 11.02.2003

The Vote

In adopting this resolution, approving the Commission's proposal with numerous amendments by 269 to 225 with 46 abstentions, MEPs are calling for a broadening of the concept of family and the introduction of safeguards against the loss of existing residence rights. 

The resolution was supported by most PES members, Liberals, the EUL/NGL group and the Greens, several EPP-ED members and one UEN member. Most EPP-ED, UEN and EDD members voted against, while a majority of British Labour members abstained. 

In the Commission proposal, EU citizens will be allowed to stay in any Member State for a period of up to six months. A Union citizen and his family will be permitted to stay longer than six months if the citizen is employed or self-employed or has sufficient resources for himself and his family. At the end of four years of legal residence in a Member State, European citizens and their family shall be granted the right of permanent residence. The Commission defines a 'family member' as the spouse, the direct descendants and the direct relatives in the ascending line. For those host Member States that treat unmarried couples as equivalent to married couples, the unmarried partners are also included in the definition.

MEPs include the spouse of the same sex, the registered partner and the unmarried partner, irrespective of sex, in that definition of a family member, if the host and/or home country treat those couples in the same manner as married couples. Furthermore, the EP adopts an amendment stating that the Member States are to facilitate the entry and residence of other family members if there are serious health or humanitarian grounds for doing so. 

For stays of longer than two years, the host Member State may require Union citizens to register with the relevant authorities if a similar requirement applies to its own nationals. 

Parliament states that the right of residence may not be revoked in the case of illness or accident. Death of a Union's citizen may not affect the right of residence of that person's family members, whether they are nationals of a Member State or not. In the case of divorce, each former spouse has to fulfil the criteria in order to obtain the right of permanent residence in the host country. This means each former spouse must be employed, self employed, have sufficient means, be admitted to a vocational training course in the host country, or be a relative of somebody else who fulfils these criteria. However, if a spouse is not a national of a Member State, then divorce may lead to an end to the right of residence if the marriage has lasted for less than two years (compared to five years in the Commission proposal). 

MEPs agree with the Commission that the validity of residence permits must not be affected by absences from the host country for compulsory military service, serious illness, pregnancy and childbirth. Otherwise, however, MEPs believe clear time limits should be set and they adopted an amendment stating that absences for study, vocational training or work assignments should not exceed one year. 

The proposed directive foresees restrictions on the right of entry and of residence on grounds of public security or public health. MEPs prolong the time allowed to lodge an appeal against a decision to restrict residence on these grounds, from a minimum of 15 to a minimum of 30 days. Those who want to lodge an appeal should have the same right to judicial protection as have the national citizens. Judicial redress procedures must have suspensory effect. 

Finally, the European Parliament postpones the date from which all Member States must apply the directive with one year to 1 July 2004, since this is more realistic.

The Debate

Commissioner Antonio VITORINO opened the debate by addressing the Commission's proposal for a directive on the right of citizens and their family members to move and reside freely within the EU. He gave some background to the proposed directive stating its origins lay in the "High Level Group on free movement and EU citizenship" set up in the late 1990s under the chairmanship of Simone VEIL. He pointed out that free movement of citizens and the right of residence were fundamental principles enshrined in the EU Treaties, and said that these principles had been confirmed in the Charter of Fundamental Rights. 

Moving to the content of the proposed directive, he said the aim was to reduce the administrative formalities which hinder free movement from one Member State to another. The aim should be that EU citizens from a Member State which is not his or her own should only face the same administrative burden as a national of the Member State in question (known as equal treatment). The directive, he commented, also aims to introduce the right of residence for EU citizens after 4 years living in a Member State. Further, the proposed directive would increase the amount of time from 3 to 6 months that a citizen would not need to obtain a residence permit, as a valid ID card or EU passport would suffice. He also stated that the proposed directive incorporated some of the recent case law of the European Court of Justice and he looked forward to its final adoption by the Member States. 

Supporting the Commission's new proposal, Giacomo SANTINI (EPP-ED, I), reporting for the Citizens Rights Committee, saw it as an important development in recognising individual rights in the EU. In effect he said it was laying down the foundations for "dual citizenship" at both the European and national level, guaranteeing permanent residence rights, in other words making existing Treaty provisions more effective. It would reduce bureaucracy and introduce a system based on simple registration with the authorities rather than obliging people to go through cumbersome procedures to obtain a residence permit. He recognised, however, that there were problems over, for example, the definition of family and here he was in favour of leaving any contentious issue to national legislation. 

Manuel MEDINA ORTEGA (PES, E), reporting for the Legal Committee, too endorsed the proposal as a step forward and supported the abolition of administrative restrictions. At the same time, he was anxious to ensure that no new procedures limiting the rights of citizens were introduced in this measure. 

For the Women's Committee, Anna KARAMANOU (PES, GR) was anxious to ensure that there would be no discrimination, and she raised the issue of women who were economically dependent on their spouse and could face difficulties over residence rights in the event of a marriage coming to an end. She pointed out that some Member States already recognised unmarried couples living together in the same way as married people. 

Hubert PIRKER (EPP-ED, A), too supporting the proposal on behalf of the EPP/ED group, agreed on the need for national legislation to deal with the sensitive issue of the definition of the family. 

Anna TERRÓN i CUSÍ (PES, E), reporting for the PES Group, saw the measure as a means of strengthening European identity among citizens. It would also be helpful in the case of people living in two countries with holiday homes in another EU state, by strengthening their rights. 

Ole B. SØRENSEN (D) for the ELDR group, welcomed the position adopted in the Citizens' Rights Committee, and felt that the directive would consolidate, strengthen and clarify existing directives in this area. He warned against the debate concerning the definition of family diverting MEPs attention from the crucial point of facilitating free movement. 

Giuseppe DI LELLO FINUOLI (I), for the GUE/NGL group, was another speaker to welcome the consolidation of existing EU law. On the definition of family, he said that relationships including same sex relationships should be recognised. Sexual orientation he said should not be a barrier to free movement. 

Kathalijne Maria BUITENWEG (NL), for the Greens/EFA group, said that many EU citizens would have thought this directive unnecessary, as free movement should have been guaranteed much earlier. On the definition of the family, she welcomed the extension in the proposed directive and also supported the principle of mutual recognition for same sex relationships. 

For the EDD group, Hans BLOKLAND (EDD, NL), on the other hand, contended that the directive was going too far and impinged on the rights of Member States in respect of the right of residence and access to a particular Member State. He stated that a Dutch citizen living and working in France, would not necessarily feel more French or European and he also said his group could not support the extension of the definition of family to include same sex relationships. 

Marco CAPPATO (IND, I), as a non-aligned Member, underlined that the aim of the proposal was not to impose a definition of the family on Member States but to facilitate free movement of citizens within the EU. He said he would be giving Mr Santini, as the reporter for the directive, a petition with 1300 signatures which called for the recognition of the right of free movement for same sex couples. 

Robert EVANS (PES, London) pointed out the anomaly that it was easier to move goods and capital around the EU than allowing EU citizens to reside where they desired in the EU. The directive, he said, would assist the creation of a "common market for people" and reduce the excessive red tape in this field. He wanted it to be as easy for EU citizens to move from one Member State to another as it is for US citizens to move from one US state to another. However, he said that the UK government was concerned that Member States should still have the right to exclude people from entering Member States for reasons of national security and claimed that a small minority would exploit the directive through marriages of convenience. 

Baroness Sarah LUDFORD (ELDR, London) too welcomed the proposal, although she rejected any concerns raised by those who saw the proposal as an avenue for illegal immigrants and terrorism. There were sufficient safeguards to guarantee against these dangers, she said. Taking up the question of the definition of a family or partnership, she put forward an approach based on mutual recognition of national practices which, as she put it, would allow a Swedish gay couple residence rights on moving to, for example, Italy. 

Michael CASHMAN (PES, West Midlands) too supported her approach here, pointing out that he himself had been living in a stable single sex relationship for 20 years, yet his partner would not be given the same rights if he moved to Belgium. It was, he said, far better to encourage an open and honest approach rather than leaving the way for clandestine developments such as marriages of convenience. 

Replying to the debate Commissioner VITORINO stated that the Commission would be bringing forward a revised proposal incorporating the most recent European Court of Justice jurisprudence. With regard to the concept of family, he pointed out the contradiction in Treaty Article 13 which gives the EU competence to combat discrimination on the grounds of sex and the fact that the EU had no competence with regard to family law. He therefore stated that the Commission would have to respect Member State law in this area. He also pointed out that same sex marriages, at present, were only recognised in two of the fifteen Member States. The problem of recognition of same sex relationships and registered relationships arose particularly when one person of the couple came from a non-EU Member State. Regarding the principle of mutual recognition, he pointed out, that although at first glance this may be helpful, the problem arose that people moving to another EU Member State may enjoy rights that Member State nationals do not, thus putting them in a privileged position. 

With regard to access to social security, he said could not accept the proposed amendment from Mr Santini and the Commission's new proposal would take into account the most recent decisions of the European Court of Justice in this field.

Press enquiries: 

Danny de Paepe 
(Strasbourg) tel.(33) 3 881 73605 
(Brussels) tel.(32-2) 28 42531 
e-mail : libe-press@europarl.eu.int 

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