Homophobia and Discrimination on Grounds of Sexual Orientation ...

European Union Agency for Fundamental Rightsarises where a citizen of the Union is married, under the law of his or her Member Stateof origin, with a person of the same-sex. At present, this question arises when same-sexcouples are married under the laws of Belgium, the Netherl<strong>and</strong>s, or Spain. Should thesame-sex married person be considered a ‘spouse’ for the purposes of the FreeMovement Directive, by the host Member State? Or may the host Member State refuseto extend the definition of the ‘spouse’ to the married same-sex partner, <strong>and</strong> deny to thatpartner a right to join his or her partner in that State?A second question is raised in the situation where a same-sex couple, although theycannot marry in their State of origin, has access to registered partnership, or to someequivalent form of civil union, <strong>and</strong> has actually entered into such an institution. In thiscase, the wording of the Free Movement Directive seems to imply that the host State isnot in principle obliged to recognise as ‘family members’ registered partners: under thedirective, only when the host State ‘treats registered partnerships as equivalent tomarriage’ in its domestic legislation, should it treat registered partnerships concluded inanother Member State as equivalent to marriage for the purposes of family reunification.The same rule would seem to be imposed on host Member States where same-sexcouples can marry. The relevant question here is what constitutes a registeredpartnership ‘equivalent’ to marriage, for the purposes of family reunification.A third question arises when no form of registered partnership is available to the samesex couple in their State of origin <strong>and</strong> thus their relationship is purely de facto. In thiscase, the obligation of the host Member State is to ‘facilitate entry <strong>and</strong> residence’ of thepartner, provided either the partners share the same household (Art. 3(2), a)), or thereexists between them a ‘durable relationship, duly attested’ (Art. 3(2), b)). This obligation,which requires from the host State to carefully examine the personal circumstances ofeach individual seeking to exercise his or her right to family reunification, is notconditional upon the existence, in the host Member State, of a form of registeredpartnership considered equivalent to marriage. It follows that, where a registeredpartnership has been concluded between two persons of the same-sex in one MemberState, the host Member State either has to treat this union as equivalent to marriage (ifthe host Member State treats registered partnerships as equivalent to marriage in itsown domestic civil law), or must at least ‘facilitate entry <strong>and</strong> residence’ of the partner,either because the partners share the same household (Art. 3(2), a)), or because such aregistered partnership establishes the existence of a ‘durable relationship, duly attested’(Art. 3(2), b)) as a matter of course.The following table provides a simplified summary of the obligations of host States underthe Free Movement Directive, in accordance with the classification of the precedingparagraphs:Intersentia, 2003; Y Merin, The Legal Recognition of Gay Partnerships in Europe <strong>and</strong> the United States,Chicago: University of Chicago Press, 2002.64