STUDY Requested by the PETI committee

Abstract :This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, examines: (i) the obstacles that rainbow families (same-sex couples, with or without children) face when they attempt to exercise their free movement rights within the EU, including examples in petitions presented to the PETI committee; (ii) how EU Member States treat same-sex married couples, registered partners, unregistered partners, and their children in cross-border situations; and (iii) action that EU institutions could take to remove these obstacles.

This document was requested by the European Parliament's Committee on Petitions.

AUTHORS Alina TRYFONIDOU, Professor of Law, University of Reading (UK) Robert WINTEMUTE, Professor of Human Rights Law, King’s College London (UK) ADMINISTRATOR RESPONSIBLE Ottavio MARZOCCHI EDITORIAL ASSISTANT Ginka TSONEVA Sybille PECSTEEN de BUYTSWERVE

LINGUISTIC VERSIONS Original: EN

EXECUTIVE SUMMARY

Findings

This study examines the obstacles that rainbow families (same-sex couples, with or without children) face when they attempt to exercise their free movement rights within the EU, including examples in petitions presented to the PETI committee. These obstacles consist of failure in a minority of Member States to recognise same-sex couples (whether married, registered, or unregistered) as couples,and to recognise that both members of the couple are the legal parents of their child or children in the Member State from which they are moving, or from which they are returning. In many cases, when a border between EU Member States is crossed, the couple ceases to be legally a couple, becoming instead two unrelated individuals, and their child or children go from having two legal parents to only one legal parent or (in a few cases involving surrogacy) no legal parents.

The size of the non-recognising minority of Member States depends on the legal situation of the rainbow family, and the kind of recognition they are seeking. In theory, all Member States accept that they must grant a residence permit to the same-sex spouse of an EU citizen. In practice, this might not be the case, even in Romania, to which the CJEU’s 2018 Coman & Hamilton judgment 2was addressed. (Because the EU legal order has failed to enforce their right to a residence permit, the couple have been obliged to take their case to the ECtHR.) Six Member States do not recognise a same-sex spouse for purposes of national law other than a residence permit.3 Nine Member States might not recognise a same-sex registered partner in some situations.4 In some Member States, same-sex unregistered partners (who might have no access to marriage or registered partnership in their own Member State) receive very little recognition. In eleven Member States, a child cannot have two women or two men as his or her legal parents (same-sex couples are excluded from joint adoption or second-parent adoption). 5 Recommendations

• The Commission should launch an infringment procedure on the basis of Article 258 TFEU and take enforcement action against Romania, because of Romania’s ongoing failure to comply with Coman & Hamilton. The Commission should also examine whether the other 26 Member States comply with Coman & Hamilton and take enforcement action against any that do not comply.

• The Commission should bring Article 263 TFEU proceedings seeking the annulment of the phrase ‘if the legislation of the host Member State treats registered partnerships as equivalent to marriage’ (Article 2(2)(b), Directive 2004/38 on free movement 6 ) as contrary to article 21 of the Charter

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