leiden university. the university to discover. the frankstein of eu legislation the free movement of...
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Leiden University. The university to discover.
The Frankstein of EU LegislationThe Free Movement of LGBT
Families
EP Intergroup on LGBT Rights
Dr. Jorrit Rijpma 6 March 2012
Leiden University. The university to discover.
Four different anglesFree Movement of EU citizens-3 situations: married, registered, partnered-Definition of “spouse” in Directive 2004/38-Primary EU law
Fundamental RightsGeneral Principles / Charter of Fundamental Rights
Free Movement Provisions read in the light of Fundamental Rights
EU Private International law (AFSJ)
Leiden University. The university to discover.
Restrictions approachImportance of recognition of civil status (documents)
Importance of being accompanied by a partner/spouse
Fundamental Status of EU Citizenship(and the genuine enjoyment thereof)
(Absence of) Justifications
Leiden University. The university to discover.
Restrictions approachThe case for mutual recognition over an autonomous interpretation or the host-country rule
Entry and Residence Rights
Equal Treatment (Art. 24 of Directive 2004/38 and Art. 18 TFEU)
Leiden University. The university to discover.
Fundamental Rights1) Right to Privacy (“Right to Relate”)
2) Right to Family Life (Schalk & Kopf)
3) Right to Human Dignity (Cf. California, SA)
4) Right to Equal Treatment
5) Best Interest of the Child 3) and 4) self-standing rights under CFR
Leiden University. The university to discover.
Fundamental RightsEuropean HR law does not require “gay marriage”, but does grant important protection
In any case ECJ is not a human rights court.
BUT: situations falling within scope of EU law deserve protection of FR as matter of EU law
Leiden University. The university to discover.
The legislative “solution”There is an obvious need for legal certainty and protection of LGBT couples
A solution would lie in a consistent application of the EU rules on free movement (read in the light of Fundamental Rights)
The EU legislator turns to the AFSJ.
If all fails one of the Courts may eventually have to step in. What is taking it so long?
Leiden University. The university to discover.
“A young love, of two ladies
of a certain age”