Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rights2.3. A same-sex registered partner of the citizen of theUnion seeks to join him or her in another EU MemberStateIn the second situation – where the same-sex couple has formed a registeredpartnership in their State of origin –, there should normally be no difficulty either if thehost State allows same-sex couples to marry, or if in its domestic law, it has a regime ofregistered partnerships which is equivalent to marriage. Although the Free MovementDirective explicitly mentions only the latter case, it would be clearly unacceptable for aState not to allow family reunification of a same-sex registered partnership under thepretext that that State allows gays <strong>and</strong> lesbians to marry persons of the same-sex,instead of having created an institution specific to them. Where the host Member Stateneither authorises same-sex marriage nor has a form of registered partnershipequivalent to marriage under domestic law, it is not obliged to grant an automatic right ofentry <strong>and</strong> residence. 109Six Member States have established forms of registered partnership in their domesticlegislation with effects equivalent to marriage – i.e., with consequences identical to thoseof marriage with the exception of the rules concerning filiation <strong>and</strong> adoption. Thisincludes CZ, DK, FI, SE, <strong>and</strong> the UK (civil partnership), but also HU, although thepartnership introduced in Hungarian legislation will only enter in force in 2009. TheseStates must recognise registered partnerships concluded in another Member State forthe purposes of family reunification with a citizen of the Union. BE, ES, <strong>and</strong> the NL –although BE has no ‘registered partnership’ in its legislation, but only a weak form of‘legal cohabitation’ – should also be added bringing the Member States, whereregistered partners may fully exercise their free movement rights, because they allowsame-sex marriage to nine.In 14 other Member States there is no registered partnership in domestic legislation: inthese States, the registered partner of a citizen of the Union is therefore not grantedautomatic rights of entry <strong>and</strong> residence (BG, EE, EL, IE, IT, CY, LV, LT, MT, AT, PL, PT,RO <strong>and</strong> SK). One of these States – Austria – might shortly join the first group, as oneparty of the governing coalition unveiled plans to introduce registered partnerships. Twoother States of this group plan to introduce registered partnerships, but reserve themexclusively to opposite-sex couples (EL <strong>and</strong> LT). The question is whether, following theintroduction of such legislation, they would be obliged to recognise same-sex registeredpartnerships concluded abroad, when their own legislation excludes same-sex couples109The Committee on Petitions of the European Parliament confirms this in its response of 3 July 2006 topetition 0724/2005 (‘a Member State which does not recognise registered partnerships under its ownlaw will not be required to automatically grant partners registered in another Member State the right ofresidence as family members’).68
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysisfrom this institution. The answer to this question is similar to the one given above, aboutStates unwilling to recognise same-sex marriage under the pretext that their owndomestic legislation only provides for marriage between two persons of the opposite sex:differential treatment of same-sex <strong>and</strong> opposite-sex registered partners would constitutea distinction based exclusively on sexual orientation, which presumably constitutesdiscrimination prohibited under EU law.Four Member States provide for some form of recognition of partnerships, the effects ofthese are too weak to consider that they are equivalent to marriage, <strong>and</strong> these Statestherefore are not obliged under Directive 2004/38/EC to grant the registered partner of acitizen of the Union automatic rights of entry <strong>and</strong> residence (DE, FR, LU, <strong>and</strong> SI).In conclusion, while nine Member States (including three States which allow for samesexmarriage in their domestic legislation) currently must recognise registeredpartnerships concluded abroad as giving rise to family reunification rights, eighteen otherMember States are not under such obligation, either because they have no suchinstitution in their domestic law, or because the forms of partnership they allow are notequivalent to marriage. This does not mean that States belonging to the latter categorymay simply ignore the existence of a registered partnerships. Article 3(2), of theDirective states that a State must ‘facilitate entry <strong>and</strong> residence’ of the partner, providedeither the partners share the same household, or there exists between them a ‘durablerelationship, duly attested’. As the following section illustrates, these terms are open tointerpretation <strong>and</strong> might lead to varying implementation across the EU. What howeverdoes seem clear – <strong>and</strong> has been confirmed by the Petitions Committee of the EuropeanParliament in its response of 3 July 2006 to petition n° 0724/2005 – is that by its veryexistence, a registered partnership establishes that there is a ‘durable relationship’between the partners, which the partnership ‘duly attests of’.69
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