Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rightsor social dependency (EE, SK), or for other reasons of a humanitarian nature (ES). Thispossibility is foreseen by the Family Reunification Directive which only defines minimumst<strong>and</strong>ards, which EU Member States can exceed (Art. 3/5). 207 As already mentioned, incertain cases, the refusal to allow for ‘family reunification’ with unmarried partners mayconstitute an interference with the right to respect for private life under Article 8 ECHRwhich, if disproportionate, could result in a violation of that provision.The Family Reunification Directive implicitly assumes that it is not discriminatory to grantfamily reunification rights to the spouse of the sponsor, without extending the samerights to the unmarried partner of the sponsor, even where the country of origin of theindividuals concerned does not allow for two persons of the same-sex to marry. Itremains to be seen whether this is indeed compatible with the requirements of equaltreatment. 208 Indeed, the result of the regime of the directive is that family reunificationrights are more extended for opposite-sex couples, which may marry in order to begranted such rights, than it is for same-sex couples, who do not have this option. Eventhough, in the current state of development of international human rights law, it isacceptable for States to restrict marriage to opposite-sex couples, reserving certainrights to married couples where same-sex couples have no access to marriage may beseen as a form of discrimination on grounds of sexual orientation (see above, 1.3.).4.4. The extension to same-sex partners of freemovement rights recognised to opposite-sex partnersA third implication of the prohibition of discrimination on grounds of sexual orientation inthe implementation of the Family Reunification Directive is that, if an EU Member Statedecides to grant the benefits of the provisions of EC law on the free movement ofpersons to the partners of a third-country national residing in another Member State (<strong>and</strong>which that other Member State treats as family members), this may not be restricted toopposite-sex partners.207These counts, it might be recalled, include DK, IE, <strong>and</strong> the UK, despite the fact that these MemberStates are not taking part in the Family Reunification Directive.208This is an issue which the European Court of Justice did not address in its judgment of 27 June 2006,when the Family Reunification Directive was challenged before it by the European Parliament: see CaseC-540/03, Parliament v Council, [2006] ECR I-5769.106
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysis5. Freedom of assembly5.1. The general frameworkArticle 11 of the European Convention on Human Rights guarantees the freedom ofpeaceful assembly. A few principles regarding the interpretation of this provision may berecalled. First, such freedom is not absolute. Its exercise may be regulated by thenational authorities, in particular by imposing a requirement of prior notification or priorauthorisation, in order to ensure that the authorities will be prepared to protect theexercise of the said right. Such requirement of prior notification should not be used as ameans to exercise a control on the content of the message brought to the public: shouldthis appear to be the case, this would constitute a misuse by the authorities of theirpowers <strong>and</strong> the courts should have the power to annul such a decision <strong>and</strong>, perhaps, toafford compensation to the individuals aggrieved. As long as the notification does notlead to such a misuse of powers, however, it is compatible with the requirements ofArticle 11 ECHR. 209 Nevertheless, an effective remedy must be available to theorganisers of a demonstration who are denied the authorisation to hold it: this requiresthat the competent court or other independent body before which the denial of anauthorisation can be challenged can adopt a decision prior to the time the demonstrationis planned to take place.The European Court of Human Rights has confirmed that one does not lose the benefitof Article 11 of the Convention simply because one engages in a protest against somelegislation while violating it. 210 Thus, the objectives pursued by the exercise of thefreedom of assembly may include a change in the existing legislation. 211 An associationseeking to promote the rights of LGBT persons, for example, may invoke the protectionof Article 11 of the Convention, even if their objective in organising a demonstrating is toprotest against the content of the Criminal Code, or an existing legislative ban on samesexmarriage. Similarly, freedom of assembly cannot be denied merely because themessage is considered to offend public morality. The European Court of Human Rightshas recalled that ‘there can be no democracy without pluralism’, so that freedom ofexpression – which freedom of assembly constitutes one specific form of – extends ‘notonly to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or209Eur. Comm. H.R., Appl. n° 8191/78, Rassemblement jurassien et Unité jurassienne v. Switzerl<strong>and</strong>, dec.of 10 October 1979, D.R., 17, p. 105.210Eur. Ct. H.R., Cissé v. France (Appl. n° 51346/99), judgment of 9 April 2002, para. 50 (‘le fait deprotester pacifiquement contre une législation vis-à-vis de laquelle quelqu’un se trouve en infraction neconstitue pas un but légitime de restriction de la liberté au sens de l’Article 11 § 2’).211See also the Fundamental Principles on the Status of non-governmental Organisations in Europe, MMONG (2001) 1 Rev. 3, 2 April 2002, para. 12.107
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