Many same-sex couples and their children are not allowed to legally establish their familial links due to certain legal systems in some Europe countries. A new report by NELFA (COFACE member) aims to answer the question if EU law can require EU Member States to recognise the legal ties between the children and both of their (same-sex) parents as these have already been legally established elsewhere in situations where the family in exercise of EU free movement rights moves to their territory?
Family law and the regulation of civil status still fall broadly within Member State competence. Thus, EU law cannot require those Member States to make provision in their laws for rainbow families to be legally established as families in their territory, as this is a matter that falls squarely within the regulatory purview of the Member States.
Nonetheless, families which are recognised as families under one legal system, cannot have their status as a family and the rights attached to that status, challenged or ignored in the EU Member State to which they move. This creates gross inconsistencies across state lines and great uncertainties for rainbow families. In addition, as shown in this Report, it gives rise to a breach of the EU free movement rights to which Union citizens are entitled, as well as to fundamental human rights which are protected under EU law.
In particular, the refusal of the host Member State to legally recognise the familial ties among the members of rainbow families that move to its territory, breaches:
- The EU free movement provisions and Directive 2004/38 (esp. recital 31) because it creates an unjustified obstacle to free movement between EU Member States
- Article 7 EUCFR and the right to private and family life which is protected as a general principle of EU law
- Article 21 EUCFR which prohibits discrimination on the ground of sexual orientation.
The consequences of this is felt by many families all over Europe as the case studies compiled by NELFA shows. That’s why NELFA asks the EU institutions for a sustainable change with its ALL OUT campaign.