EU Family Policies between Domestic ‘Good Old Values' and Fundamental Rights: The Case of Same-Sex Families
| Author | Matteo Bonini Baraldi |
| Date | 01 December 2008 |
| DOI | 10.1177/1023263X0801500405 |
| Published date | 01 December 2008 |
| Subject Matter | Article |
15 MJ 4 (2008) 517
EU FAMILY POLICIES BETWEEN DOMESTIC
‘GOOD OLD VALUES’ AND FUNDAMENTAL
RIGHTS: THE CASE OF SAMESEX FAMILIES
M B B*
ABSTRAC T
Recent European Union action has shown a clear impact on various areas that touch upon
family matters and family law, su ch as free movement, immigration, and asylum on the
one h and, and divorce, parental responsibility, mainte nance, and property rel ations on
the other. Research has shown that in today’s Europe, families split up more easily than
before, people cohabit, they become parents or even single parents outside marriage, and
same-sex partners can marry and a dopt children in some countries. is articl e, while
providing an overview of ol der and newer EU measures that have an impact on lesbian,
gay, and bisexual (LGB) partnerships and families, hig hlights patterns of continuing
exclusion, as well as possible solutions. It focuses on the developments that followed the
adoption of the 2004 Hague Programme, and on the direction that EU law has taken since.
Family issues are sensitive matters and entail the risk that Member States u se discussion
of such matters in order to boost national rhetoric on ‘good old values’. is ar ticle argues
that the c onnections between f ree movement, EU citiz enship and the ge neral principle of
equal treatme nt should be seen not only a s a central c oncern for the individuals directly
aected, but also as a test case for as sessing the extent to which the EU can truly arm the
supremacy of certain f undamental rights that it claims to recognize.
Keywords: Fa mily; registered partnerships; f ree movement; citizenship; rights
* EU R esearch Advisor at the University of Bologna and D irector of the European Study Centre on
Discrimi nation (www.cesd .eu). e author wishes t o express his grat itude to I LGA-Europe for
having contributed nancially to the resea rch presented in this a rticle, a dierent version of which
was published as a policy pap er in 2007 at t he following add ress: http://www.i lga-europe.org/Eu rope/
Publications/ Non-periodical. Many thanks to Ma rk Bell and Kees Waa ldijk for their comments on
earlier dra s.
Matteo Bonin i Baraldi
518 15 MJ 4 (2008)
§1. INTRODUCTION
On 4 November 2004 the Europe an Council, convened in the Hague, adopted a n
ambitious and not uncontested plan aimed at boosti ng EU activism in a number of
areas, including v isas, asylu m, immigrat ion, EU c itizenship, and judicial cooperation
in civil and cr iminal matters.1 EU action in thes e areas was deemed to be crucial for the
development of an area of f reedom, security and justice, wh ich, by then, had found its
way almost to the top of the EU agenda.2 It is clear that the expansion of the Union’s law-
making action has a knock-on i mpact on various area s that touch upon fam ily matters
and family law, such as i mmigration, asylum, and free movement on the one hand, and
divorce, parental re sponsibility, maintenance, property relat ions, and succession on the
othe r.
According to a European Commis sion press release of 2 8 March 2006, ‘following a
partner, bei ng with fam ily and havi ng a better quality of life are t he main factors that
motivate Europeans to move to another country’.3 If Europeans predominantly move for
family reasons, it is necessary to question what is meant by ‘fami ly’ in today’s Eu rope.
Despite past achievements through analysis and resea rch dedicated to broader social
changes,4 not much is known about the lega l posit ion of unmarr ied a nd regist ered
partners who move into or around Europe, and about the impact of this phenomenon on
the development of a European identity and citizenship. Same-sex couples, in particula r,
have long been an ‘invisible entity’ in national cultural, politica l, and legal discourses, an
absence oen also reected at t he Community level.
is art icle, while providing an overview of older and newer EC measu res that have
an impact on LGB partnerships and families , intends to highlight continui ng patterns of
exclusion of same-sex families , and attempts to suggest some possible solutions. It focuses
mainly on the de velopments that followed the a doption of the 2004 Hague Progra mme.
e rst sect ion will consider in brief t he relevant partnership a nd adoption laws at the
national level, and t he extent to which national diversicat ion can pose problems to the
individual respect of fundamental r ights as a condition for t he full functioning of the
EU.5 In turn, the second section i llustrates the response of EU law to such problems, by
1 e Hague Programme , Annex I of the Presidency Conclu sions, 4/5 November 2004, Counc il doc. No.
1429 2/04 .
2 See S. Peers, EU Justice and Home Aairs Law (OUP, 2nd ed. 2006); J. de Zwann and F. Goudappel (eds.),
Freedom, Secur ity and justice in the European Union. Imple mentation of the Hague Programme (T.M.C.
Asser Press, 2 006).
3 Commission’s Press Release I P/06/389.
4 For an overview of EU-funded research proje cts in the 4th a nd 5th Fra mework Progra mmes, see the
Dossier of RTD Info – Magazine on European Research, No. 49, May 2006, online at http://ec.europa .eu/
research/r tdinfo/49/index_ en.html.
5 According to the 1997 Protocol No. 5 on the position of Denmark – annexed to the Treaty on Europe an
Union and to the Treaty e stablishing the Eur opean Commu nity (OJ/C 34 0 of 10 November 1997) –
Denmark is not part icipating in measures u nder Title IV of the EC Treaty. According to Protocol No. 4
EU Family Policie s Between Domestic ‘Goo d Old Values’ and Fundamenta l Rights
15 MJ 4 (2008) 519
analyzing those measures t hat have a clear i mpact on LGB issues, following a thematic
division dependi ng on whether they belong to t he ‘Freedom’ or the ‘Justice’ strand. e
third sect ion will attempt to critically re view the direction that EU law has ta ken and to
highlight avenues for improvement.
Finally, some conclusions close the analysis by arguing that if funda mental rights are
to be seen not only as market-unier tools, but as specic instances of the most important
values t hat underpin a community of citizens, t hen European i nstitutions must nd a
way to guarantee freedom and justice for all individuals living in that community and for
the family arrangements that matter to t hem. is should be not only a centra l concern
for the individuals directly aected, but also a test case for assessing the extent to which
the EU ca n truly ‘make its voice heard’ in sensitive matters, such as transformations of
family str uctures and related legal formats.
§2. NATIONAL LAW AND THE PROBLEM OF ‘PORTABILITY’
OF CIVIL STATUS
A. A BRIEF OVERVIEW ON NATIONAL LAWS ON MARRIAGE,
PARTNERSHIPS AND ADOPTION
ere is little doubt that the family law of many Member States has moved away from the
hierarchical and status-ba sed model of the past, and is continuing to adapt to a changing
cultural and social landscape. Given the current institut ional arrangement of the EU, it
would be a mistake to concentrate only on the European level, since many of the changes
in Community law orig inate and are inspired by developments at the national level.
Information on domestic laws dealing with new partnership schemes and adoption by
same-sex couples is easily available; several research projects have contributed to rening
our understanding of both t he details of the legal texts and the larger picture of the lega l
changes concerning same-sex fam ilies.6 e overall landscape in this eld resembles less
on the position of the United Ki ngdom and Ireland, annexe d to the Treaty on European Union and the
Treaty establish ing the European Commun ity, these two countries may indic ate their wish to take part
in the adoption a nd application of specic mea sures.
6 See for inst ance, e impa ct of the increasing numbers of same-sex marr iages o r legal ly recog nized
partnership s on other legal domains, such as property rights and divorce l aw, Europea n Parl iament
Brieng Paper, Septe mber 2007. See a lso K. Waaldijk, More or Less Together: Levels of Lega l
Consequenc es of Marriage, Cohabitatio n and Registered Partnership for Dierent-Sex and Same-Sex
Partners. A Compa rative Study of Nine European Countries, Documents de trava il No. 125 (Instit ut
National d’Étude s Démographiques, 2005); K. Waaldijk and E. Fassin, Droit conjugal et unions de même
sexe. Marr iage, partenari at et concubinage dans neuf pays européens (Pres ses Universitaires de Fr ance,
2008); M. Bonini Baral di, Le nuove convivenze tra discipline straniere e dirit to interno (IPSOA, 2005); R.
Wintemute and M. A ndenaes (eds.), Legal Recogn ition of Same-Sex Par tnerships. A Study on National,
European, an d International Law (Hart Pu blishing, 20 01); K. Boele-Woelki and A . Fuchs (eds.), Legal
Recognition o f Same-Sex Coupl es in Europe (Inters entia, 2003); Y. Merin, e Legal Recognition of Gay
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