No Freedom of Movement for LGBT Persons?

EDW
July 5, 2012

“Many EU countries have laws recognising same-sex marriage and registered partnerships, but most do not recognise each others’ laws.

For example, two lesbians are married in Belgium. To continue to benefit from the rights, responsibilities and protections outside Belgium, they can only move to one of a few EU countries which currently recognise their marriage. The lack of mutual recognition results in serious violations of one of the most fundamental EU principles – freedom of movement of citizens.” (Source: ILGA Europe)

Comment:

The poster’s text asserts that EU Member States that do not legally recognise the same-sex marriages contracted in another EU Member State — such as Belgium (currently one of six EU Member States allowing same-sex marriages) — commit “serious violations of one of the fundamental EU principles – freedom of movement of citizens”.

The fact is that freedom of movement and of residence are fundamental rights accorded to every citizen of the EU. Further, discrimination based on sexual orientation is prohibited by Article 21 of the Charter of Fundamental Rights. Therefore, gay and lesbian people in the EU do enjoy freedom of movement in the same manner and extent as any other EU citizens. The poster’s text misinterprets the meaning of “freedom of movement”.

What freedom of movement of EU citizens really means is that EU citizens have the right to move and settle in any other Member State — provided they have a job and a domicile. It doesn’t mean any more or any less than this. It does not require an EU Member States to receive citizens from other Member States who do not fulfil these requirements and then provide them with social security or other similar benefits.

Because matters of marriage and family are the exclusive competence of each EU Member State, it is still perfectly legitimate for a Member State not to recognise same-sex marriages, whether conducted in another EU Member State or in a non-EU country. More importantly, the freedom of movement principle does not include an implicit obligation for a receiving Member State to legally recognise same-sex marriages conducted in another Member State — especially if same-sex marriages are not part of the receiving country’s domestic legal order. It also does not oblige an EU Member State to automatically confer “rights, responsibilities and protections” to same-sex couples from other EU countries (or abroad) if it does not already confer these to its own citizens. Indeed, if the principle of freedom of movement were to be interpreted in the way suggested by the poster, it would unavoidably result in an absurd discrimination against the receiving Member State’s own citizens. For example, the Belgian couple in the poster would have more rights in Italy, for example, than an Italian same-sex couple who cannot marry.

Furthermore, if this indeed were the case, it could lead to the strange emergence of ‘marriage tourism’ for European homosexuals: They could travel to another EU Member State (e.g., to Belgium) to get married and then return to their own Member State to claim the “rights, responsibilities and protections” associated with their Belgian marriage. This would render the exclusive competence of EU Member States (except in the situations — and under the procedure — already set out in Article 81.3 of the TFEU) to regulate issues related to marriage and the family completely nugatory.

Therefore, it is the biased position promoted by the poster that would result in violations of the EU Treaty, not the refusal of certain EU Member States to recognise same-sex marriages.

If the European Commission really believed that a given Member State’s refusal to recognise same-sex marriages conducted abroad violated the fundamental right of freedom of movement, it would already have had the courage to accuse that Member State before the European Court of Justice (ECJ). The truth is, however, that the Commission has never taken such legal action.

In the meantime, in the absence of an ECJ judgment on the matter, it is inappropriate for the Commission to lend its support to a publicity campaign that makes the allegation that some EU Member States are committing “serious violations” of the EU’s freedom of movement principle.