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European Commission Should Push EU-Wide Gay Partnership Recognition – Ludford
 

■ Sarah Ludford MEP: “I have lost patience with the hesitation and prevarication experienced from Brussels so far.”

LONDON, September 10, 2010  –  Euro-MPs have demanded that the European Commission should forcefully push all EU member states to fully recognise same-sex partnerships (registered and married) contracted in another EU country.

In a lively European Parliament debate in Strasbourg late on Tuesday evening, MEPs were discussing the oral answer from the Commission to written questions tabled over the matter of EU-wide recognition of legal same-sex partnerships (registered or civil marriages) contracted in another EU country.

Some MEPs are critical of what they see as the Commission's slowness to enforce EU free movement rights for LGBT couples, Sarah Ludford (UK London, LibDem/ALDE) said today

“Gay or lesbian couples can be in a civil partnership here in the UK – or married under, for example, Dutch law and hopefully soon under UK law – but find themselves treated as two singles when they move to another EU country,” she said.  “This means not being recognised as a family and forced to forfeit many legal and tax advantages.

“This unacceptably unequal treatment of same-sex couples certainly breaches existing EU non-discrimination and free movement rules, although the legal regime itself needs tightening to give EU states no possible let-out,” she insisted.

“The European Commission’s fundamental rights Commissioner, vice-president Vivian Reding, has confirmed that existing European law is being broken.  In which case why is she not enforcing it by taking EU states to court under infringement proceedings?  Mrs Reding needs to go further too, and put forward comprehensive proposals for ‘mutual recognition’ of same-sex civil partnerships and marriages.

“I have lost patience with the hesitation and prevarication experienced from Brussels so far.  The European Commission needs to cease being the meek lamb and start playing wolf on LGBT rights in the EU,” she concluded.

The remainder of this article is the verbatim transcripts of what selected MEPs (who spoke in English) said in the chamber of the European Parliament on Tuesday evening.  A video recording of all the speeches (with instant English audio translation where appropriate) can be seen HERE. The debate lasted just under one hour.

Michael Cashman (UK West Midlands, Labour/S&D), one of the ‘authors’ of the questions, pointed out in an impassioned speech to the Parliament that Commissioner Reding’s record on non-discrimination is exemplary, and the two testimonies she had already heard in the debate were “intensely interesting”.

“Like Mr de Jong  [the GUE/NGL MEP from the Netherlands who had opened the debate], I am a gay man in a civil partnership, in a relationship of 27 years that has only been recognised by the state for five years.

“As was said earlier, if I were to have an accident whilst on holiday in Italy, my partner would not even be given the basic right to decide whether, in such a case, I should be on a life support machine or not.

“It is these basic elements that are so private and personal of which we are deprived on the sole basis of prejudice.  There are those who say that mutual recognition and respect for civil laws and civil rights acquired in another country, and recognised and enforced in another Member State, would undermine a Member State’s competence on marriage.

“That is absolute nonsense,” he suggested.

“I am afraid it is an argument proposed by those who wish to have any excuse not to achieve equality.

“There are five Member States that recognise same-sex marriage.  There are 12 that recognise civil partnerships.  Ten of the 27 remain outside that brilliant ring of tolerance, equality and understanding.

“Commissioner, it is your role – and I know it is a role you will take up – to push them into that ring of tolerance and understanding.  Then we really will have an area of freedom, security and justice, not just for some, but for all, regardless of one’s sexual orientation, gender or gender identity.

“In politics it is so easy to follow public opinion.  The hardest, and most difficult, thing to do is to lead it and to face down prejudice.

“If this House does the right thing and you, Commissioner, do the right thing, then we really can change the Union and change people’s lives for the better, not only for ourselves, but for generations to come.

The record of your hearing is unequivocal.  You said that you believed that rights acquired in one country should be respected in another.  I have the quote here, but I know I do not need to remind you of it because you are a woman of principle who will stand up against persecution and discrimination.”

Sophia in 't Veld (Netherlands, Democraten 66/ALDE), another author, recouted watching a documentary on BBC World about some countries in the Caucasus where it is customary for men to ride out and steal a bride.

“When their eye catches a nice girl they abduct her, take her home, rape her and then she is the man’s wife.  Of course the families of the girls vigorously protest against this, because they feel it is not up to the men to decide to take the girl – it is up to her father to decide to give her away.

“It was a heartbreaking documentary.  It was shocking, and why?  Because we feel that the choice of a partner, the choice of a husband or a wife is the most personal and intimate choice you can make in life.  It is not for the man, not for your father, not for your brother – and certainly not for the state – to determine who will or will not be your partner.

“We have seen in history, and we still see today, countries where the state bans marriage between black and white people.  In my country, not very long ago – this was something my grandparents were confronted with – Catholics were not allowed to marry Protestants even if they loved each other.

“There are still conservative Muslims who feel their daughters should not marry non-Muslims.  There are many examples like that and we feel that is very shocking.  But we still have countries in the European Union that ban marriage between consenting adults of the same sex.

“I know that for some people it is very shocking that people of the same sex can love each other, but that is not really relevant.  What is relevant here is that every single EU citizen should have the same rights.  It is not for the European Union or for the Member State governments to judge a personal relationship.

“The European Union has no competence in family law, but as Michael Cashman has just pointed out there are five countries already which have opened their marriage laws to same-sex couples.  There are a number of other countries which have some form of recognised partnership.  The very least we should be doing in the European Union is apply the principle of mutual recognition.

“We do it for jam and wine and beer: why do we not do it for marriage and for relationships?

Ms in 't Veld concluded:  “I would like to ask the Commission to take the initiative for mutual recognition between those Member States which already have marriage or some form of registered partnership and give us a road map on how we will get to a situation where those relationships will be recognised everywhere.”

Replying to the remarks of the ‘authors’ on behalf of the European Commission, Viviane Reding said it was clear that the right to free movement and residence of EU citizens and their family members is one of the cornerstones of the EU.

“It is not only a fundamental right but also a personal right.

“Article 21 of the Treaty is very clear and gives effect to that right.  The ban on discrimination, including discrimination at the level of sexual orientation, is a cornerstone of the EU and is also recognised in another Article 21, but this time of the Charter of Fundamental Rights.

“The directive has brought a very significant improvement for same-sex couples,” she pointed out.

“I would like to thank Parliament, because it was Parliament which really pushed this through.  EU law has provided, for the first time, for the right of both same-sex and different sex couples to move and reside freely within the European Union.

“That said, it is implicit that if you are allowed to move freely and to reside freely, then you must also have the same rights at your second place of residence as you do at your first place of residence.  It is for the Member States, as has been said, to decide whether or not they provide for registered partnerships or for a legal order, but what we are gradually seeing is more and more Member States moving in the direction of either recognising or allowing same-sex marriages.

“The directive is very modern in that respect because it does not distinguish between same-sex couples and couples of the opposite sex.  Actually, the directive is neutral on this.  It allows such situations to happen and for couples to express themselves and to have this right.  In that sense it is not necessary to amend the directive,” she continued.

“How this directive is implemented in practical terms is another matter.  The directive in itself is not the problem, but rather the interpretation of the directive.  For the Commission it is very clear that the directive must be applied with full respect for the principle of the prohibition of discrimination on the grounds of sexual orientation.

“The Commission has to ensure the correct application of EU law.  This means the Commission has to monitor whether, in applying the directive, Member States respect fundamental rights, including the prohibition of discrimination on the grounds of sexual orientation – the well-known Article 21 of the Charter.

“The Commission attaches great importance to eliminating any obstacle restricting the right of free movement and residence, and will continue to work with Member States to make sure that the directive is applied correctly.

“You will know that the Commission has adopted guidelines on better transposition of the directive.  The guidelines are from July 2009, so we are now looking at the way Member States are applying those guidelines in practical terms.

“The Commission welcomes the report on homophobia and discrimination on grounds of sexual orientation issued by the Fundamental Rights Agency.  That report, which was drawn up at Parliament’s request, provides comprehensive and important data on the human rights of gays, lesbians, bisexuals, transsexuals and trans-gender persons.

“This data is needed, and I have asked the Agency to deepen research in this area – as I declared publicly during the International Day against Homophobia on 18 May – because we need to know what is going on in practice in the Member States.  The forthcoming annual report on the application of the Charter, which is due in November, will deal with discrimination and homophobia.  You can count on my determination to act within the framework of the powers that the Treaty has entrusted to the Commission.

“I am sure you understand that this is, for some Member States, a very delicate political and social question, because the way of looking at things is not the same all across Europe.  However, the fact that more and more Member States are either recognising or applying marriages, irrespective of the sexual orientation of the partners, is a very good sign.

“We have to advance step by step.  We must, most of all on the basis of our guidelines, bring the Member States to accept these rules.  For many this is very new and very unusual.  For some it is very shocking.  We have to advance cautiously, because what we do not want – and I believe all those who have spoken here of their experiences, from their hearts, understand this too – is not to be too harsh.

“In saying this I am not speaking about the basic values, which are not in question, but we have to bring resisting Member States, step by step, to accept the general rules. What we do not want is to have people starting to oppose same-sex marriages, the recognition of rights and non-discrimination.

“Let us see, in the report, the details of how, in the different Member States and in different regions of the Member States, things are being applied.  I do not want there to be any doubts about the fundamentals, about the rights of free movement, irrespective of sexual orientation or ethnicity. These we are going to apply step by step.  We will come back to this.

“Some Members have given a very personal insight, and I wish to thank them.  It is very important for me to grasp the sensitive nature of this issue, which is not only a matter of principle but also a matter of human beings living their personal lives.  Thank you for that.  I am sure that together we will manage to change the situation in the coming months and years,” the Commissioner concluded.

But not all MEPs were totally satisfied with the Commission’s response.

Sarah Ludford pointed out that some of the same features in the debate were also in Parliament’s earlier debate that day on the expulsion of the Roma from France and, previously, from Italy.

“We have splendid principles in the Treaties and legal instruments of the EU – non-discrimination, equality, rights of minorities, human dignity, the right to family life and the right of free movement – but their implementation in the Member States leaves much to be desired and falls short of these values and commitments.

“The problem is that the Commission, which is the watchdog and guardian of the Treaties, all too often hesitates to pursue Member States for even quite serious and very serious breaches.

“I am privileged to represent London, and therefore – I would say – one of the most progressive regions in Europe when it comes to gay rights.  I am not claiming that my city, or even my country, is free of homophobic prejudice or discrimination – we do not yet have gay marriage – but we have made a lot of progress.

“But when my constituents with civil partnerships travel or move abroad within the EU, they lose their rights and legal status, as others have mentioned: inheritance, tax, social benefits, even the right to be treated as a partner are lost,” she pointed out.

“But the whole programme in an area that I work in a lot, which is European criminal justice, is rooted in the principle of cross-border mutual recognition – recognising and implementing legal decisions made in other EU Member States.  So why not legal decisions on partnership or marriage, which is even more precise than the area of jam and widgets that my friend Sophie was talking about?

“I therefore do not agree with Vice-President Reding, with respect, that the Free Movement Directive does not need amending.  It does need amending, to remove the semi-discretion that Member States have to discriminate against couples where they are same-sex partners or spouses moving from another Member State.

“It therefore seems to me that we need action from the Commission.  We have got to a sort of critical mass, even if one accepts this argument that you have to wait for social change.  We have a critical mass of Member States which legally recognise same-sex couples.

“It is time to introduce uniform treatment of those same-sex partners moving to another European country. In fact, a recent interesting judgment of the European Court of Human Rights suggested it might not be too long before that Court – the Court of the Council of Europe – insists that marriage be open to same-sex couples.  It would be richly ironic if the EU had failed to act and we found ourselves upstaged by the Council of Europe when we claim to be the gold standard in our own self-definition compared to the Council of Europe.”

Green MEP Ulrike Lunacek (Austria, Die Grünen/Verts-ALE) said that she truly believed every word the Commissioner said – and that “she personally believed in implementing the rights of movement of every European citizen, be they gay, lesbian, heterosexual or whatever, be they married or in a registered partnership or whatever.”

“The problem I have, as do all of us who have spoken, or at least most of us, is when you say that we need to go forward step by step, and that we need to make Member States understand, and convince them, and to work against prejudice.  I know that is the case, but I also think that, in all EU countries, citizens are a lot further ahead than their governments.

“Let me tell you about Warsaw EuroPride this year, which I went to.  I walked with around 20 000 people – lesbian, gay, heterosexual, bisexual, transgender – through the main streets of Warsaw, with extremist demonstrators being pushed away by the police to the margins where they belong, and with lots of heterosexual citizens – such as women with their dogs watching from buildings – greeting us and saying that we, as lesbians and gays, were at the centre of society, in the mainstream.

“Those equal rights in the Charter of Fundamental Rights that you have been rightly quoting are for all of us.

“As Ms Ludford and so many others have said, we need the Commission to push forward and not to wait for Member States to slowly, maybe one day, do what they have to do for their citizens, for each and every one of us.

“Let me give you my own example.  For 17 years it was not possible in my country for me to have a registered partnership with my partner, but it has now been possible for a couple of months.  If I have to go and live in another country like Italy or Greece, I do not want to have to wait again until we can be recognised and, in difficult situations, be able to say that we are partners, we belong to each other and we want to care for each other.

So please, push,” Ms Lunacek implored.  “There are many in this Parliament who want to push with you.”

Nicole Sinclaire (UK West Midlands Independent/Non attached) admitted that she was not expecting to speak in the debate.

“I had no intention of speaking and I do not have a prepared speech, but I thought I would say a few words.

“As an openly gay person, I think it is the right of everyone to love who they want to love and to live the life they wish to live, whoever that may be with.  What has been confirmed here tonight is how right I was to leave the EFD Group and their Fascistic views – for example, the 19th century views of their Italian group.  I remind this Chamber that their mayor of Treviso said that homosexuals should be ethnically cleansed from their city.

“As an openly gay person and as an openly gay politician, I have sometimes been a bit afraid to campaign for what I believe in with regard to equal rights for gay people.  This is because I do not wish to be typecast.  I wish to campaign for what I believe in.  That surely is a discrimination that still affects our Member States.

Of course if people join the European Union – there have been many referenda where people have acceded to the European Union – they have therefore acceded to these rights.  Everyone knows that I am a believer in the Member State but – as Ms in ‘t Veld said – this is beyond the Member State.

“This is about fundamental human rights.  I think if you allow a country to join the European Union – much as I am opposed to it – they must accede to its rights.”

She concluded by asking the Commissioner a question: “So when will you enforce these rights? Are we equal or are we not?

Winding up the debate, Viviane Reding, said: “For me it is easy, because the law is very clear. It is about non-discrimination, the right to free movement and mutual recognition.

“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.

“This is the law today, and you can count on me to help you to enforce this.  But wait, that is the law.  The reality sur le terrain – in real terms – might be different, and we have to change this reality.  This is the reason why I have said that we have these bilateral meetings at technical level with Member States in order to see how we can change their way of applying something which is very clear in legal terms.

“Permit me here to disagree with Baroness Ludford.  We normally do agree in our analysis, but here, we do not.

“The Directive on Free Movement does not give the Member States discretion to discriminate – no EU directive does.  We should not allow a mythology to be developed saying that, actually, it is possible to discriminate.  We have to be very firm on the principles.  I think here we agree again, do we not?

“So for me there can be no discussion about the basis of what our legal system is and how it has to be interpreted.  We will try to have this applied everywhere in the same way as it is written down, and here you find me on your side.

“There was a question: when is this going to happen?  Now!  Not in five or 10 years.  I do not know about a change of mentality in the different Member States.  I can just tell you about the experience which I have as a politician over so many decades.

“Sometimes governments are more cautious than their populations, and this has been said from personal experience in this Chamber.  Sometimes the population react in a very natural, relaxed way, and the government thinks that there is a very big problem.

“What I try to do is to bring the governments to understand this. If there is no understanding, then more harsh measures have to be applied,” she said.

The debate concluded.

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