Book Review: Partnership Rights, Free Movement and EU Law
| DOI | 10.1177/1023263X0701400105 |
| Published date | 01 March 2007 |
| Author | Anne Peter van der Mei |
| Date | 01 March 2007 |
| Subject Matter | Book Review |
14 MJ 1 (2007) 101
BOOK REVIEWS
Ton er, H elen , Partnership Rig hts, Free Movement and EU Law, Hart Publishing 2005,
xxiv + 286 pp., hardback , £40, ISBN 1-84113-477-5
In 1986, the ECJ concluded in Reed1 that unmarried partners cannot be regarded as
spouses for the purposes of Ar ticle 10 of Regulation 1612/68, which entitled spouses of
migrant workers to reside in the host State . In the absence of any indication of a general
social development which would justify putting un married par tners on a par with
married part ners (of the same sex), the ECJ concluded that the term sp ouse in Article 10
referred to the traditional ma rital relationship only. e ECJ did accept, however, that
residence rights for unmarr ied partners can be classed a s a social advantage in the sense
of Article 7(2) of Regulation 1612/68, thus implying that un married partners have a right
to join the migrant worker where, a nd only where, the host State o ers such an advantage
to its own nationals.
Since 1986, the views on and t he laws governing part nership rights in var ious
Member States have evolved considerably. e possibility of registering par tnerships
and/or same-sex marriages have been introduced in various Member States and this
raises the quest ion as to whether the ti me is now possibly ripe for extending residence
rights to partners of migrant EU citizens other than heterosexual spouses. e book
under review here demonstrates that t here is no political agreement on th is issue yet.
During the leg islative process that has le d to the adoption of the new free movement
Directive 2004/38,2 the issue has been discussed, but the nal outcome in essence does
not fundamental ly di er from the conclusions reached in Reed. Di sappointed by this,
Helen Toner argues that recognition of free movement rights for par tners other than the
traditional heterosex ual spouses is not just a matter for the political EU institutions. It
is also an issue for cour ts and the ECJ in particular. Communit y law provides for basic
legal principles and r ights that impose res traints on nationa l laws, rules a nd practices,
which, as the author arg ues, are in pri nciple also applicable to pa rtners’ imm igration
rights.
Having outlined relevant recent developments in the Member States and the
Community’s legislative proces s (Chapters 1 and 2), Toner i nvestigates which rights or
pr i nc ip le s m i gh t p os s ib ly cu r ta i l M em b er St at e s’ po we rs to de ny or r es tr i ct f re e m ov em en t
1 Case 59/85 Netherland s v. Reed [1986] ECR 1283.
2 O.J. 2004, L158/77.
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