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2004-10-22

2. Legal recognition of same-sex partnerships by the European Union (1999-2004)

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In this contribution I will consider the progress the European Union has made concerning the recognition of same-sex partnerships during the 5th Legislature of the European Parliament (1999 – 2004). I will do so from the perspective of a politician who was actively involved in both the political and the legislative process. Detailed legal analysis I will leave to others who are more qualified in that respect. I will concentrate on the activities of the Commission, the European Parliament and the Council, and leave aside the recent judgements of the European Court of Justice. 
 
EUROPEAN POLITICS AND LEGISLATION 
 
The institutions of the European Union do not have a direct say in family matters. Legislation on the introduction of non-marital partnerships or the opening up of marriage to persons of the same sex is the exclusive competence of the Member States. Nevertheless, these issues have recently very often been discussed by the institutions and are now formally part of the EU political agenda.  
The growth of the number of EU Member States which have introduced new legal arrangements – both for marriage and for non-marital partnerships – has brought about a spill-over effect to the Union. This took two different forms.  
Firstly, the political demand for equal marriage and partnership rights has reached the EU political arena; the advocates of these legal innovations started using the EU as a forum for mobilizing more political support for their ideas. In doing so, they have in turn influenced debates in the Member States, including in those countries where these issues had not yet reached the national political agenda. 
Secondly, EU policy-makers have realized that the cross-border consequences of new family arrangements could no longer be ignored. They started - although very half-heartedly - to insert some forms of recognition of these new phenomena into their drafts for new legislation, especially in the areas of free movement of EU citizens, asylum and migration policies and in the new EC Staff Regulation.  
Both developments have been kept under close surveillance by ILGA-Europe, that as an officially recognized and subsidized NGO has played an important agenda setting and lobbying role. The European Parliament’s Intergroup on Gay and Lesbian Rights contributed to mobilizing political support and building coalitions between different political groups.  
At the EU level two issues are at stake: 
(a) Where EU law links certain rights and obligations to marriage and/or family, these concepts should be defined in an inclusive way. This means that anyone legally married in a Member State (or in a third country) should be considered as married for the purposes of EU law. This also entails that the same rights and obligations should be extended to registered partners as well as to de facto partners evidenced by a durable relationship.  
(b) Member States should be obliged to deal with these new marriage and partnership arrangements according to the mutual recognition principle. This means all EU Member States, including those where same-sex marriages or registered partnerships do not exist, should be obliged to admit any legally married or otherwise recognised couple according to the laws of the country of origin. In this way, the freedom of movement of an EU citizen within the EU would not be hampered by a lacking entry and residence permit for his or her partner. Such partners should also have the same right to work and be entitled to the same social security benefits as the spouse of an EU citizen who has moved to another EU country. 
 
 
GAY RIGHTS ARE HUMAN RIGHTS 
 
EU human rights activities in the last five year have regularly and more and more loudly dealt with the marriage and partnership issue. 
 
The EU Charter of Fundamental Rights and the European Constitution  
Article 21 of the Charter states that ‘any discrimination based on any ground, such as (….) sexual orientation shall be prohibited’. This ban on discrimination is not restricted to one or more policy areas and therefore amounts to a step ahead compared to the existing non- 
discrimination acquis. (The scope of the Framework Directive prohibiting discrimination is restricted to employment and occupation ). Given the limitations and derogations in the Charter (that does not bring new rights and powers) it seems highly unlikely that this Article 21 could be used to denounce the absence of same-sex marriage in a Member State as discrimination. However, Article 9 states ‘the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the existence of these rights’, a formula that deliberately leaves room for new developments. I cannot interpret this otherwise than as a move in the direction of mutual recognition, i.e. an obligation for any EU Member State and the Union as such to grant a same-sex married couple (coming from The Netherlands or Belgium) equal rights, that is treat them as ‘normally’ married. But experience shows that the logic of a politician is often more simple than the convolutions of the legal mind. 
The incorporation of the Charter in the (Draft) European Constitution, as well as the prominent place of the values of equality and non-discrimination in the Constitution itself will in a more general sense contribute to strengthening the fight against sexual orientation discrimination as part of the EU human rights agenda. A group of Members of the European Parliament worked together to safeguard and enhance this achievements.  
 
The European Parliament’s annual reports on the human rights situation in the EU  
The four reports on the human rights situation in the European Union adopted by the European Parliament in the period 1999-2004 comprised a progressive set of recommendations and proposals for the recognition of same-sex relationships. Such statements lack a direct legal effect, but reflect the growing awareness of the issue among political actors at the EU level. They generated considerable public debate and presumably contributed to the growing support for legislative changes in the Member States and in the accession countries. These EP recommendations have also influenced the legislative activities of the EU institutions that I will consider hereafter. 
 
The Haarder Report 
The first human rights rapporteur in this period was the Danish liberal MEP Bertel Haarder. His draft report was (as far as I know) the first official document to mention the issue of ‘mutual recognition of different legal forms of cohabitation in the EU’, after having noted ‘with satisfaction that, in a very large number of Member States, there is growing legal recognition for extramarital cohabitation, irrespective of gender’. After incorporation of various amendments from other MEPs, the final result adopted by the EP Plenary contained almost all elements of the partnership debate that would be on the EP agenda in this parliamentary period: (1) a call on Member States to grant legal recognition (recognise registered partnerships) to non-married couples both of the same and of different sex; (2) a call on Member States to grant these couples equal rights, i.e. ‘rights equal to those enjoyed by traditional couples and families, particularly as regards tax law, pecuniary rights and social rights’; (3) a call (to the EU institutions) to make ‘rapid progress’ with ‘mutual recognition of the different legally recognised non-marital modes of cohabitation and legal marriages between persons of the same sex in the EU’. The result of roll-call votes indicated a moderately polarized Parliament, with a considerable minority in the PPE-DE Group voting together with the Socialists, the Liberals and the Green Groups in favour of these paragraphs. 
I note that, at this date, a call to Member States to open up marriage to same-sex couples (let alone to legalize adoption by such couples) was apparently considered a bridge too far; no such amendment was introduced. This would change quickly. Furthermore, the issue of same-sex partnerships was broadened to non-marital partnerships at large. By not presenting the partnership issue as a gays and lesbians - only affair but as a demand that heterosexuals could also share, more votes in Parliament could be secured.  
 
The Cornillet Report 
The next Human Rights rapporteur, the French MEP Thierry Cornillet (member of the conservative PPE-DE Group in the Parliament) did not propose anything on the partnership issue . The opening up of marriage and adoption for gay couples were now mentioned for the first time in amendments; but these amendments failed. The proposal ‘to legally recognize same-sex marriages’, was adopted in the LIBE-Committee but rejected in the Plenary .  
The final result was a clearly formulated recommendation to the Member States to ‘(a) amend their legislation in order to recognise non-marital relationships between persons of the same or the opposite sex and assign them equal rights and (b) put the issue of mutual recognition of legally recognised non-marital relationships on the EU agenda.’ The EP also recommended ‘that the Member States introduce legislation which prohibits discrimination for long term co-habitants and provides the same judicial protection as for legally married couples’.  
 
The Swiebel Report 
I was appointed the next Human Rights rapporteur in this series. In my draft report I tried a step by step approach. On two items I indeed gained a little bit more than the year before. The EP not only called on the Member States to recognise unmarried partnerships, but also ‘to link them to the same rights as apply to marriage’. In addition, the EU should not only put the mutual recognition of unmarried partnerships on the political agenda, but also cover [mutual recognition of] marriages between persons of the same sex, and draft specific proposals on the subject.  
My proposal to the EP to ‘invite the Member States to open up marriage to same-sex couples’ was adopted in the LIBE-Committee , but rejected again by the Plenary.  
 
The Sylla report 
Fodé Sylla’s original report mentioned the free movement issue, but omitted the partnership issue as such. This was corrected by an amendment adopted by the LIBE-Committee, that called on the Member States ‘to abolish all forms of discrimination – whether legislative or de facto- which are still suffered by homosexuals, in particular as regards the right to marry and adopt children’. It came as a nice surprise when on 4 September 2003 the Plenary of the European Parliament approved this amendment. LGBT activists celebrated it as a moral victory. For the first time the EP had adopted such a statement, which only a few years ago had seemed unthinkable. It made clear that the quest for equality was not going to spare marriage as something sacrosanct.  
The clauses on the marriage and partnership issue included in the EP annual reports on human rights have mobilized considerable public debates and put pressure on EU policy-makers. 
 
The EU Network of Independent Experts on Fundamental Rights. 
The Network of fundamental rights experts was created by the European Commission in response to a recommendation of the European Parliament. The network is composed of high level experts in human rights law from the Member States, and coordinated by professor Olivier de Schutter. So far, the Network has produced two annual reports and a couple of thematic comments and opinions. In its first report, it reviewed recent national legislation on same-sex marriages and non-marital partnerships, and warned that ‘this extension cannot fail to influence the development of Community law. This cannot base the notion of “marriage” or “spouse” to which it refers on ideas that are situated within the meaning that the member States want to give to them for their own nationals of whom they determine the personal status’. Its second annual report contained an extensive legal treatise on the definition of ‘family members’ in the (amended) draft directive on free movement and heavily criticized the narrow approach of the Commission (and the Council). As we shall see below, this has lent considerable authority to the position of the European Parliament in this issue. 
 
The last five years the EU human rights activities have been upgraded and performed in a more professional way. The inclusive approach of the marriage and partnership issue has not only got more political clout but also a more solid legal base. 
 
 
ASYLUM AND MIGRATION POLICY 
 
At the European Council at Tampere (15-16 October 1999) the EU decided to develop a common asylum and migration policy. The Commission was to table new draft legislation to implement this promise. The various draft Directives also contained a new approach to the definition of family members of asylum seekers, refugees, migrants and third country nationals, who under certain conditions would obtain certain rights under EU law. The approach originally taken by the Commission was that Member States would be obliged to extend the rights of spouses also to the ‘unmarried partner in a stable relationship, if the legislation of the member state concerned treats unmarried couples in the same way as married couples’. In the explanatory memoranda of these draft proposals it is made clear that unmarried partners may be of the same sex, but that ‘this provision generates no actual harmonisation of national rules on the recognition of unmarried couples; it merely allows the principle of equal treatment to operate.’ Apparently, in the view of the Commission, this principle of equal treatment can be confined to the comparison between nationals of a Member State and foreigners coming to that Member State, and would allow a different treatment of those same foreign family members by different Member States. The approach taken by the Commission may be called the ‘host country principle’, but such theoretical concepts or considerations were conspicuously lacking. 
Even this modest Commission approach has only partially been accepted by the Council. The obligation to equal treatment of spouses and unmarried partners according to the definitions quoted above, was (with some minor changes) maintained in the final texts of the Temporary Protection Directive , the Directive on Reception Conditions and the Qualification Directive. But in the Family Reunifications Directive and in the Directive on the status of Third Country Nationals such an equal treatment was made optional. Where ‘Member States shall authorise the entry and residence’(…) of the spouse of the third country national legally residing in that Member State, ‘Member States may, by law or regulation, authorise the entry and residence (…) of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership (…)’(my italics). Similar formulations were adopted concerning the children of unmarried partners. These type of optional rules do not impose any obligation to Member States and do not confer any right to unmarried couples. 
An evaluation of partnerships rights under the recently adopted EU asylum and migration law must take into account the controversial status of these issues at large and the increased polarization of EU decision-making after 11 September 2001. The area of justice and home affairs within the EU has increasingly been dominated by security considerations and the fight against terrorism. This has made it possible for conservative forces - who wanted to use every means to curb immigration - to drive their proposals through. 
The role of the European Parliament in this field has been very marginal. It only had the right to be consulted on these proposals. On the partnership issue, the Parliament defended the Commission’s approach and objected to it being watered-down. No amendments were tabled that tried to implement the mutual recognition principle in this field. The Members of the European Parliament who were active on gay rights and the partnership issue concentrated their efforts on the Free Movement Directive. Apparently, that dossier was regarded as more important for the recognition of partnership rights.  
 
 
THE FREE MOVEMENT DIRECTIVE 
 
Free movement of persons between the Member States is one of the basic aims of the EU. The right to free movement means that every EU citizen is entitled to travel freely around the Member States of the EU and settle anywhere within its territory. This fundamental right in principle also extends to the members of the EU citizen’s family – but in 2001 the definition of that concept became a major issue. In contrast with asylum and migration policies, the Parliament has full co-decision powers in this field (cf. Art.. 18 and 251 TEC). 
The Commission’s proposal for a new Directive aimed at amalgamating the existing jigsaw puzzle of rules and regulations and modernizing its contents. This proposal extended the (initial) right of residence of an EU citizen in another EU Member State from three to six months, simplified procedures and removed any conditions or differential treatment between nationals and non-nationals after four years of residence in the host Member State. In line with the ‘host country principle’ already followed in the asylum and migration dossiers, the Commission proposed that if an EU citizen exercises his or her right to free movement and residence in another Member State, that right shall also apply - not only to that citizen’s spouse - but also to ‘the unmarried partner, if the legislation of the host Member State treats unmarried couples as equivalent to married couples and in accordance with the conditions laid down in any such legislation’  
What does this proposal mean for the freedom of movement of an EU citizen living in a non-traditional family? His of her unmarried partner would have nothing to worry about if he or she were in the position to exercise the right to free movement and residence himself or herself, i.e. if he or she were an EU citizen with a (new) job in the second Member State or would have sufficient resources and a comprehensive sickness insurance in the new Member State. But in case one partner is financially dependent on the other or if one of the partners is a third-country national, these new rules could have strange consequences. In the numerous debates in the Parliament’s Citizen’s Freedoms and Rights Committee the proposal was heavily criticized, as it would lead to discrimination on the basis of nationality within the EU and therefore run counter to the quintessence or the Union. E.g., a Swedish couple with a registered partnership would get residence rights in the Netherlands (or in any of the six other EU Member States which had recognized unmarried partnerships by 2001) but would be denied such rights for instance in Greece or Italy. A same-sex couple married under Dutch law could settle in Belgium, but would most likely find other Member States hesitating to recognize their marriage . 
Intensive lobbying by ILGA-Europe and two meetings on this subject held by the EP Intergroup on Gay and Lesbian Rights contributed to the building of a coalition of Liberal, Radical, Socialist and Green MEPs, who together tabled an amendment for a more inclusive family concept and secured the votes of their political groups, both in the Committee and in the Plenary . As a result, the Parliament’s legislative report adopted in the first reading proposed to expand the definition of ‘family member’ to include same- sex spouses, registered and unmarried (de facto) partners, irrespective of sex, ‘if the host and/or home country treats those couples in a corresponding manner to married couples’ (my italics). This formula put the mutual recognition principle into practical terms, without obliging the Member States to adapt their own marriage and partnership laws. The new rights for non-traditional partners and their children would be restricted to entry and residence under EU law and not change national civil law.  
The flush of victory, however, was to be short. In its amended proposal the Commission did not take over the ‘family’-amendments of the European Parliament. The reason given is worth quoting: ‘On this point the Commission feels that harmonisation of the conditions of residence for Union citizens in Member States of which they are not nationals must not result in the imposition on certain Member States of amendments to family law legislation, an area which does not fall within the Community"s legislative jurisdiction.’  
The Network of experts on fundamental rights criticized the Commission’s position and its thin motivation, concluding that this ‘may in the long term pose problems of compatibility with the requirements of fundamental rights’. The Network argued elaborately that there is no firm legal reason to reject the approach suggested by the EP. In my view, the Commission was hiding behind the smokescreen of so-called Community competences. Mutual recognition of different forms of partnerships for the purposes of free movement within the EU does not change domestic family law. It could however lead to a growing demand for those domestic legislative changes, a development that would not be welcomed by the national officials at the Brussels negotiating table and their Ministers back home. In other words, the Commission was forced to lend a perhaps too willing ear to the Council, where even the modest Commission draft was highly controversial.  
The Council had to decide by unanimity and were set to do so before the new Member States would be joining the EU by mid 2004. Political agreement was reached on 22 September 2003, but it took the Council until 5 December to formally adopt it as a so-called common position and send it to the Parliament. The right to free movement was to be granted to the EU citizen’s spouse and to ‘the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;’(Art. 2 (2). Furthermore, ‘Member States shall (…) facilitate entry and residence for (…) the partner with whom the Union’s citizen has a durable relationship, duly attested’(my italics). ‘The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’(Art. 3 (2) (b). This formula restricts free movement rights to the spouse (not defined) and to the registered partner on the basis of the ‘host country principle’. In addition, Member States have a certain obligation to ‘facilitate’ the free movement rights of other partners, but this does not bring to these people any rights that can be invoked before the Courts. Nevertheless, it must be admitted that the Council had gone to some lengths to try to appease Parliament.  
The original coalition in favour of the mutual recognition approach was heavily disappointed but was forced to understand that this result was the maximum possible. Time was running out and going through a fully fledged conciliation procedure after the European elections of June 2004 was in nobody’s interest. In addition, it soon became clear that there was no ground for a compromise text on the family issue that would be supported by the necessary 314 of the 627 MEPs. Simple political arithmetic induced the Liberal and the Socialist groups to acquiesce in the Council’s text. With such a huge majority in Parliament the final text of the new Directive could soon appear in the Official Journal.  
The initial strong position of a majority in Parliament has certainly influenced the negotiations in the Council, but that majority was not large enough to build a real countervailing power. As I said in the final debate in the EP Plenary , we had to count our blessings. The Council has for the first time recognized registered partnerships in the EU and linked them to one or two rights. Moreover, the door to full recognition of all partnerships has been put ajar. Member States must justify any denial of entry or residence, a promise that can be exploited both before the Courts and in future political debates. So this is certainly not the end of the fight for free movement for EU citizens and their partners. 
 
 
REFORM OF THE STAFF REGULATION 
 
A reform of the staff regulation of the European Commission became necessary after the European Parliament had enforced the stepping down of the Santer Commission in January 1999. The new Commission started a reform process to meet complaints about fraud, incompetence and old fashioned personnel policies. The recognition of partnership rights was to be part of that agenda , following inside pressure from interest groups like Egalité and the need to take position after the Court of Justice had refused to recognise the partnership rights of a Swedish employee working at the Council (D. & Sweden v. Council).  
The Commission proposals on this issue amount to granting full partnerships rights (including household allowances and survivors’ pensions) to all married officials, whether of opposite or same sex, and to officials in a non-marital partnership legally recognized as such by a Member State, on the condition that the couple has no access to legal marriage.  
Interestingly, the competent Commissioner, Neil Kinnock, had no difficulty in accepting same-sex marriages and say so loudly, even before his proposals had finally passed the Commission. But his conditions for accepting unmarried partnerships once more introduced a discrimination on the basis of nationality. I spelled this out in a written question to the Commission but to no avail. In his reply Mr. Kinnock stated that ‘the divergence of status and treatment (…) are a product of the diversity of the legal provisions in the Member States’. The Commission could and would not assume the role of the civil registration services, he added. Apparently, he was not aware that another European institution, the European Central Bank in Frankfurt, did not feel such hesitations. The ECB grants to ‘a member of staff who is engaged in a non-marital partnership recognised by the ECB’ the same rights as to a married staff member. If a staff member cannot produce a registration or another formal document by a member state, he or she may also ‘produce documentation showing to the satisfaction of the ECB that they have cohabited and formed a household for at least the last two years and continue to do so currently’.  
After much pressure from the Intergroup on Gay and Lesbian Rights and mobilizing colleagues and staff in the Legal Affairs Committee, the two EP Rapporteurs agreed to include in their draft report an amendment along the same lines. Thereupon that amendment was adopted without a vote, both in the Legal Affairs Committee and in the Plenary. Commissioner Kinnock, however, was not prepared to follow Parliament on this issue. He motivated his position, in addition to the by now familiar but in my view invalid Community competences argument (see above), by referring to the consideration that ‘it limits the risk of fraud and unjustified budgetary consequences.’ He also hinted at ‘very substantial and resilient reservations’ in the Council, that might put the whole project at risk.  
The final result was, however, a new staff regulation that recognizes both opposite and same-sex marriages, but partnerships only in case marriage is no legal option. This looks like an Echternach procession: two steps ahead, one step backwards. Instead of taking into account the full variety of choices couples make in practice, these rules force people into marriage where that option exists. It does not recognise that many opposite-sex and same-sex couples do not want to marry and prefer alternative arrangements. This implicit message ‘get married if you can’ is totally at odds with the alleged motivation of the proposal: to adapt the EU personnel policies to modern times. That motivation was in fact a political argument pour besoin de la cause, or to say it unfriendly, a big lie. 
 
 
MUTUAL RECOGNITION OF JUDICIAL DECISIONS 
 
The European Council held in Tampere in October 1999 decided that the principle of mutual recognition of judicial decisions – both in civil and in criminal matters – should become the cornerstone of judicial co-operation in the European Union. In 2003 the Council adopted a new Regulation on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility, including those relating to children of unmarried couples. This regulation is especially relevant in cases of parental removal of children from one Member State to another.  
However justified this new Regulation might be, its consequences are very strange. A Danish unmarried couple moving to Greece would run into trouble given their lacking rights of entry and residence for all family members. But if one of the parents would against the will of the other parent abduct their child to Greece, the judgement of a Danish Court about the immediate return of the child, would have to be automatically enforced in Greece. In this case, there is no ‘host country principle’ behind which that country could hide! 
The Commission has also announced new proposals on the consequences of separation of married and unmarried couples in property terms, or successions and wills. In my view, this is another example of the tendency to start at the wrong side of the problem. But perhaps the Commission is becoming aware, that taking-up the heart of the matter might give better results in the end. In their Communication on the future of Justice and Home Affairs policies, they remark, that ‘it might prove useful to facilitate mutual recognition in new fields such as the civil status of individuals, family or civil relations between individuals (partnerships) or paternity.’ Whether the Council will be prepared to follow this idea in the period to come remains to be seen. 
 
CONCLUSION 
 
EU policy-making and legislation on the marriage and partnership issue in the last five years has been very fragmented. The progress made has been a very partial one. But the tense debates have kept the issue high on the agenda.  
Different approaches were followed in different policy areas by different EU institutions. The European Commission and the Council have followed the ‘host country principle’ in the areas of asylum and migration legislation and in the free movement issue, but applied full mutual recognition regarding judicial decisions. For their own staff regulation the Commission invented a sort of ‘home country principle’, but added a rather outdated bias towards marriage to that approach. The Parliament, mostly consistent in recommending the mutual recognition approach, has not been successful in putting it through. 
Policy-making in this area is hampered to a great extent by the limits of Community competences, but even more so, I think, by the wrong interpretation of that limitation. The new Constitution explicitly mentions ‘measures concerning family law with cross-border implication’ as a legitimate concern of the Union, be it that decisions on such measures still require unanimity in the Council and the European Parliament is only to be consulted (Article III-269).  
In the end, a solution along the lines of mutual recognition will have to be found. This is even more likely, as more and more Member States have drafted legislation recognizing unmarried partnerships and where Spain has tabled legislation to open up marriage to same-sex couples and such a move in France seems probable in the near future. The progressive majority of the Socialist, Liberal and Green groups in the European Parliament has been an important factor in keeping up the pressure and launching workable solutions. It will be important to preserve and strengthen that coalition in the future. 

 

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