About the Directive

In 2004, the European Union adopted a new Directive on Free Movement Rights for EU Citizens and their Family Members (Directive 2004/58). This Directive sets out the rules applying to EU citizens and their family members who wish to move to and reside in another EU member state. The new rules apply to individuals who want to move to take up a new job, to undertake studies or even to retire in another EU member state.

While the Directive entered into force on 30 April 2004, the 25 member states have until 30 April 2006 to revise their domestic legislation to make sure that it meets all the terms of the Directive. The Directive aims to consolidate, strengthen and clarify existing EU legislation in the area of free movement. Read more about EU legislation.

ILGA-Europe’s Campaign

A central issue with the Directive was the definition of the ‘family’ of an EU citizen. For more than two years, ILGA-Europe, together with national LGBT organisations, campaigned vigorously to change free movement law which discriminates against same-sex families by limiting the right to be joined in another EU state by a family member to married couples and their children.

ILGA-Europe called for an inclusive definition of family within the new EU Citizens Directive, one that would include same-sex spouses, registered partners and other unmarried partners living in a durable relationship. Although ILGA-Europe’s position initially received strong support in the European Parliament, the final text of the Directive reflects the resistance of some member states to the inclusion of same-sex married and unmarried couples. Though symbolically important as the first official acknowledgment of the existence of registered same-sex couples, the Directive does not give same-sex families any substantive new rights.

Implication for LGBT and their families

Under the Directive, the right to free movement primarily remains limited to a "spouse" and the children of either the spouse or the sponsor. Whether or not this includes same-sex spouses is not clearly defined but will be ultimately for the European courts to resolve. Registered partners only enjoy the right to free movement if the host country 'treats registered partners equivalent to married couples'. Registered partners moving to states that do not treat registered partners as equivalent to married couples and unmarried partners, regardless of where they are moving to or from have no automatic right to free movement. The directive does make provisions, stating that member states "shall facilitate" entry and residence of such individuals, but the meaning is unclear and will also depend on case-law interpretation.

For more information on the application and implementation of the Directive, please refer to our publication: Guidelines on the Free Movement Directive.