LGBT rights:
mutual recognition of existing same-sex marriages and civil partnerships across the European Union In a majority of EU countries same-sex couples can celebrate their permanent unions or regulate their cohabitation. This takes different forms, including full marriage equality, civil partnerships, or regulation of cohabitation rights. Not all member states, however, recognise these unions. We think that this constitutes a breach of the EU Charter of Fundamental rights. This pamphlet explains why we are fighting for mutual recognition of same-sex unions across the EU.
Source: stevep2008, Flickr
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www.euroalter.com
By Alessandro
Valera
European Alternatives would like to thank: Everyone who took part to the citizens’ consultations around Europe, the speakers and moderators of regional and transnational consultations, the contributors to this pamphlet and all the volunteers and activists who made People Power Participation possible. Our partners Be an Angel Romania, Support 4 Youth Development, Cassero Bologna, Rete Lenford, Parks Liberi e Uguali, Sofia Pride, FELGBT and KPH. Anna Paola Concia, Robert Biedron, Ivan Scalfarotto, Stefano Squarcina and Bruno Selun for believing in our work. Delyan Benev for the graphic design of this pamphlet. This project has received part financing from the European Commission’s “Europe for Citizens” Programme.
Printed in Italy for European Alternatives in November 2011
European Alternatives is a civil society organisation devoted to exploring and promoting transnational politics and culture by means of campaigns, conferences, publications, artistic projects, and TRANSEUROPA Festival. We believe that today democratic participation, social equality, and cultural innovation are undermined by the nation-states in Europe, and that transnational forms of collectivity must be fostered to promote these values. With offices in four European countries and a network of activists and local groups stretching to over twelve, the organisation is unique in being at once a breeding ground for new ideas and proposals for politics and culture at a European level and in being a political and cultural actor with a truly transeuropean activity, staff and support base. To find out more about European Alternatives, check out our multi-lingual website: www.euroalter.com or follow us on social networks: www.facebook.com/euroalter www.twitter.com/euroalter
You are free to copy, distribute or display this pamphlet. You must give the original author credit. You may not use this work for commercial purposes. You may not alter, transform, or build upon this work. www.euroalter.com 2011, European Alternatives
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Our common strategy European Alternatives is looking to collaborate with partner organisations and individual activists around Europe to produce a joint European campaign and to set up the necessary coalition to carry it through. We could take this achievable goal as a common flagship campaign in 2012. We could organise a campaign in several EU countries, coordinate a lobbying action towards our national MPs and European MEPs. We could also decide to submit a Citizens’ Initiative to the European Commission, requesting officially legislate over mutual recognition of all forms of existing marriages, partnership and cohabitation rights across the EU. While aware of the challenge that the 1 million figure represents, a well-organised coordination across all 27 member states and an alliance with political parties, individual MEPs, local, national, transnational NGOs as well as a strategy based on social media and viral communication, could make this challenge achievable. Citizens’ Initiative The Lisbon Treaty introduces the possibility of the European Citizens’ Initiative. The treaty provides that “not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties”. Online signatures will be considered valid. The current proposals are that signatures will have to come from a minimum of 7 EU countries for the initiative to be valid.
Foreword The Community of Lesbians, Gays, Bisexuals and Transgenders in every country in Europe has to face similar problems: homophobia and transphobia, access to pensions, custody of children, tenancy rights, security of employment, to mentioned just a few. Our problems do not know national borders but fortunately our courage and determination do not know them either. We are all Robert Biedron up against a world where some social benefits and opportunities like some forms of relationships, activity, identity are not equally available to every person. This way of thinking and this way of acting is a part of something bigger, which cannot be restricted along the border of any country. This is a part of our European identity which is based on fundamental rights and respect for minorities. There is another very important thing which should make us look at LGBT issues from the pan European point of view and that is European Solidarity. It is true that we all follow one path, but some of us can only walk when others can run. Our societies need to establish ties, sustain and support each other. Some of us need good
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examples or help with lobbing. Don’t forget about the latter common ground, because we are stronger together. For these reasons, I strongly support the People, Power, Participation project which I’ve seen in action in Bologna. Focusing on recognition across Europe of existing same-sex marriages and civil unions is a first step in a battle that will lead to more and more conquers for LGBT people, and therefore for all European citizens who believe in fundamental rights and equality.
Robert Biedron, Member of Polish Parliament The Free Movement Directive (2004/38/EC) also obliges member states to allow married couples and others in permanent relationships to be able to freely move across the EU. On Tuesday 23 November 2011, the European Parliament in Strasbourg approved a report on “Civil, commercial, family and private international law” which confirms the necessity for any civil contract (including all forms of marriages and civil unions) to be fully recognised in all EU countries. While the great majority of the eleven countries yet to recognise same sex unions ignored such directives, Malta did implement it, creating a unique situation in which married same-sex couples wishing to relocate to Malta will see their status recognised, while in that same territory Maltese same-sex citizens are not allow to marry or form a civil partnership.
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Article 33 states that “the family shall enjoy legal, economic and social protection”. This right is not respected if one’s husband and children are not legally recognised, socially protected and do not form an economic unit in several EU member states. Furthermore, the Treaty of the European Union (amended most recently by the Lisbon Treaty) states in its Article 3.2 “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured (…)”. This right is not currently fully respected for people in civil partnerships: if they move to seek work in other countries of the European Union, they may end up losing their rights if their partnership is not recognized. This can be particularly serious if one of the partners becomes ill or dies, or in case of a dispute over property, for example. Furthermore, Section 2.3 of the Stockholm Programme specifies that measures to fight discrimination and homophobia should “be vigorously pursued”. Moreover, section 3.1.2 highlights how “mutual recognition should be extended to fields that are essential to everyday life, e.g. […] matrimonial property rights”. There is therefore a favourable legal and political framework within which to situate a campaign for the recognition of all forms of partnerships across the EU. For these reasons, while a call for regulation of gay partnerships in the whole of the EU would be desirable but beyond its competences, focusing on one relatively small issue like the mutual recognition of all types of unions, may be a more achievable first-step. This said, the history of the European Union has been marked by a series of relatively small steps towards integration that have led to inevitable further integration. Our effort toward this specific single-issue campaign is moved by the awareness that this is a starting point and not just a final goal.
LGBT rights: mutual recognition of existing same-sex marriages and civil partnerships across the European Union “Let me stress this. If you live in a legally-recognised same-sex partnership, or marriage, in country A, you have the right – and this is a fundamental right -to take this status and that of your partner to country B. If not, it is a violation of EU law, so there is no discussion about this. This is absolutely clear, and we do not have to hesitate on this.” Vivianne Reding, EU Commissioner
Context Over 2011, European Alternatives has organised a deliberative consultation with citizens and stakeholders in a sample of six EU countries on trans-european issues relating to the area of Justice, Security and Freedom contained in the Stockholm Programme (2010-2014). The consultations have taken place in the UK, France, Italy, Bulgaria, Spain and Romania, but citizens from throughout Europe have been involved. LGBT rights have been one of the six main topics debated across Europe, in which a trans-national perspective could strengthen the struggle of different activists engaged in their local communi-
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ties across Europe. These consultations are imagined to decline a specific set of shared demands at a European level in the areas of citizens’ rights, leading to specific actions, including the possibility of a Citizens’ Initiative. While different issues were debated within the LGBT rights spectrum, including media representation of sexual minorities, the difficulty of coming out in conservative countries, or the right of transgender people to change their name and gender on official documentation, the participants to this projects have converged on the issue of mutual recognition of existing couples as one specific yet achievable demand that European civil society could take forward in 2012 as a common campaign aimed at national and communitarian institutions. Marriage, civil partnerships, registered co-habitation or no rights: the mixed situation for same-sex couples in the EU In a majority of EU countries (16 out of 27) gay couples can celebrate their permanent unions or regulate their cohabitation. This takes different forms, including full marriage equality, civil partnerships, or regulation of cohabitation rights. In the Netherlands, Belgium, Spain, Portugal and Sweden (as well as in Norway and Iceland who are not in the EU) gay couples enjoy full marriage equality. The newly elected centre-left Danish government has announced the political will of Denmark to pass marriage equality legislation. Similarly, the UK’s centre-right government has announced moves towards marriage equality, starting with the imminent removal of the ban on civil partnerships being celebrated by religious ministers, one of the few differences with marriage equality still remaining.
teed in accordance with the national laws governing the exercise of these rights”. This article was probably written as a caveat to future attempts to get EU-wide same-sex unions approved. However, there is plenty of room to demand – if not the full recognition of gay relationships in every EU country – at least an EUwide recognition of same-sex unions sanctioned in those member states that allow them. This would have a snowball effect on generalising civil liberties in all European countries. Failing to allow married same-sex couples to “transfer” their status from one European country to another violates the basic premise of “European citizenship”, as well as a series of other articles of the legally-binding EU Charter of Fundamental Rights. Article 9 states that “everyone has the right to respect for his or her private and family life”. At the moment, the lives of many couples and their children are not respected, if they cannot move to an EU country and continue to see their family recognized as such. Article 15 states that “Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State”. As highlighted earlier, while they formally may have that right, many EU workers cannot practically opt for a job in another country, in which their partner and children would not be legally recognized. Article 24. 3 states that “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”. At the moment, children with same-sex parents can only be registered as offspring of one of their parents in countries like Italy. This has often resulted in the other parents being denied legal rights over their children when they move to those countries for reasons of work.
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Why mutual recognition is important. Are all European citizens enjoying freedom of movement? A report by the EU Agency for Fundamental Rights has highlighted how any move towards greater protection of gay people and greater extension of rights to gay couples tends to result in more positive attitudes by the general population towards this group. Rather than greater acceptability leading to more rights, it seems that granting rights results in greater acceptability, largely due to “normalization” of same-sex families. Indeed, in countries where homosexual couples have been legally protected, businesses and employers have followed suit, with partners enjoying the same perks and advantages as those of wives and husbands of heterosexual workers. Recognising same sex marriages will lead to considerable improvement in the lives of LGBT people. Due to the economic interconnectedness of the EU countries created by the single market, the phenomenon of same-sex couples needing to relocate to another EU country that does not recognise their union has become widespread. In 2009, the Swedish presidency of the European Council tried to push forward proposals under the Justice and Home Affairs pillar, which included the recognition across EU countries of all forms of marriages and civil unions. However, what came to be called the Stockholm Programme was amended and ratified without the inclusion of this “controversial” element. Despite the lack of legislation, this issue is becoming more prominent, as same-sex couples facing problems of recognition in other countries went from being a handful in the early 2000’s to now constituting a sizeable group of EU citizens who do not fully enjoy the right of freedom of movement and freedom to work across the Union. The EU charter of fundamental rights makes it clear that “the right to marry and the right to found a family shall be guaran-
Photo: cinocino/Flickr
In some other countries, including the UK and Germany, parallel institutions, available only to same-sex couples, have been created. They are not called marriages (civil partnerships in the UK and gleichgeschlechtliche Lebenspartnerschaft in Germany) but they can be celebrated by public officials and usually include the great majority of rights available to married heterosexual couples. In a third set of countries, such as France, Hungary or the Czech Republic, couples of any sexual orientation can accede to a set of rights guaranteed by a registered partnerships. The French Pacte civil de solidarieté (PACS) are the most notable example of this. PACS were legislated in 1999, when no country in Europe recognised same sex-marriage, and were seen as a victory for the LGBT community. By now 95% of couples who choose to form a PACS are heterosexuals and the LGBT community largely demands the extension of marriage to same sex couples, too. Finally, there are eleven EU countries who do not grant any rights to same-sex couples: they are Italy, Greece, Malta, Cyprus, Latvia, Estonia, Lithuania, Romania, Bulgaria, Slovakia and Poland.
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The map below summarises this situation:
form of union is recognised in another EU country, this is still the product of bi-lateral agreements between two member states. The national parliaments of France and Luxemburg, for example, voted in 2009 to recognise other civil partnerships celebrated in Europe as equivalent to their PACS. The UK is also developing bi-lateral discussions with single EU countries which have had mixed results. Conversely, Romania has a specific Article of their of the Civil Code (277/2009) that forbids the recognition of same-sex couple in Romania, including those marriages or partnerships registered in other EU countries1. Poland and Italy, the most populated EU countries not to grant same-sex couples the possibility of registering their union, have witnessed several of their citizens getting married abroad. Poland in that past has repeatedly refused even to provide a certificate, often required by all those who marry in a country other than their own, to prove that they have not previously been married, if there was the suspicion that that person would try to enter a same-sex union.
Source: wikicommons
Mutual recognition With such a variety of forms of unions for gay and lesbian couples, the recognition of existing forms of partnerships in the European Union is patchy and does not follow universal principles. When a
In 2007, when a growing numbers of Italian couples were trying to get their foreign marriage recognised in Italy, Giuliano Amato, at the time Home Secretary, issued an official letter that was sent to all mayors of Italy’s local authorities to warn them about the attempt of gay couples to see their foreign marriage recognised and advising on countermeasures to avoid the marriage being registered2. In 2009, one gay couple in Trieste managed to get their marriage registered, as the French name of the spouse was understood to be female, being spelled with only one letter differently from the common spelling of the female name. The Constitutional Court subsequently abolished the recognition. 1 2
For more information check ILGA Europe’s website See for example http://www.italialaica.it/eventi/26173
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