Limited progress for LGBT persons and their families
European Parliament accepts Council decision on free movement
On 19 February 2004 the Citizens' Rights Committee of the European Parliament adopted without amendment a second-reading report that recommended the acceptance of the Council's common position on the right to move and reside freely within the EU. Likely to pass through Plenary, the directive will come into force on 1 July 2005.
In its first reading of the directive in February 2003 the Parliament had adopted a draft that would have truly respected the right to free movement for all families. The final text falls significantly short of these initial gains. Though symbolically important as the first official acknowledgment of the existence of registered same-sex couples it confers no substantive new rights to LGBT people and their families. The Parliament's cautious stance vis-à-vis family diversity however, does not necessarily signal fading support for LGBT rights amongst Europe's parliamentarians. Underlying the decision are pragmatic considerations: fierce opposition in Council, the accession of the ten new member states in May and the Parliament elections in June all have contributed to the judgment that in the current political climate this was the best compromise attainable.
"The decision falls short of the expectations of many who do not want to see political pragmatism prevail over the fundamental values of equality in the European Union", states ILGA-Europe Co-Chair Riccardo Gottardi. "It was a unique opportunity to create a coherent approach to the recognition of the diversity of family relations in Europe which we failed to take. Nevertheless, this is a crucial first step toward the full recognition of our families in the EU and an important milestone from which we will move on in the years to come".
The struggle for a full recognition of same-sex families will continue. The directive is but the first stage. It has opened the door to legal action at both national and European level, a step numerous gay and lesbian couples are taking already to fight for full equality.
The directive aims to consolidate, strengthen and clarify existing EU legislation in the area of free movement. Under the directive, the right to free movement would primarily remain 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 would only enjoy the right to free movement if the host country 'treats registered partners equivalent to married couples'. Currently this would cover a maximum of seven of the future twenty-five member states: Denmark, Sweden, Finland, the Netherlands, Belgium and possibly Germany and France. 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 blurry and would - again - depend on case-law interpretation.
The official title of the directive is: Amended Proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.