Some are more equal than others:

Discrimination and the right of same sex

partners to free movement in the EU

Simon Roberts
University of Nottingham
Study partner

Maija Sakslin
The Social Security Institution
Helsinki
The problem

Although non-discrimination and the free

movement of persons are fundamental
principles of the European Union,
discrimination against same sex partners
across Europe presents serious barriers to
free movement
Rights-based equality
EU legislation has raised the level of rights-based equality
Treaty of Amsterdam

broadened focus from nationality and gender to include non

discrimination on grounds of sexual orientation
since Treaty of Amsterdam discrimination on grounds of
sexual orientation falls within Community competence under
Art 13 EC Treaty
The Charter of Fundamental Rights of the European Union

includes prohibition of discrimination on grounds of sexual

orientation
Lisbon Strategy

puts inclusion of all at the heart of Europes social policy

agenda
A hierarchy of discrimination
Lesbian, gay, bisexual and transsexual people receive less
protection in many spheres than other people
Employment Equality Directive 2000/78/EC
prohibition of discrimination on grounds of religion or belief,
disability, age and sexual orientation
confined to discrimination in matters concerning employment and
occupation
ECJ Case C-267/06 Maruko - may include occupational pension
if equivalent to wages
Race Equality Directive 2000/43/EC
more comprehensive protection

confined to race and ethnic origin

Some member countries provide broader protection

Many member countries lesbian, gay, bisexual and transsexual
people experience discrimination in all aspects of their lives
Civil status
Discrimination in member countries includes
recognition of same sex partners civil status
Recognition varies across member states
marriage
same sex civil union/partnership laws

not permit registration of same sex

relationships but provide some rights for same
sex partners
not recognise same sex relationships
(Ottosson/ILGA, 2006)
Discrimination in conditions of
entitlement to social security
One of the most common instances of
unequal treatment in relation to social
security relates to same sex partners
Some countries - none of which
recognises same sex marriage - provide
specific benefits for married persons or
discriminate in benefit entitlement
conditions between same sex and different
sex partners (McColgan et al, 2006)
Free movement of persons

Article 18 of the EC Treaty provides that, subject

to limitations and conditions laid down in the
Treaty and measures adopted to give it effect,
every citizen of the Union has the right to move
and reside freely within the territory of the
member countries
The limitations and conditions are found in
Directive 2004/38/EC
Directive 2004/38/EC

Directive uncertain about rights of Lesbian, Gay,

Bisexual and Transsexual people (see Bell, 2005)
Member States should implement this Directive
without discrimination between the beneficiaries of this
Directive on grounds such as sex, race, colour, ethnic
or social origin, genetic characteristics, language,
religion or beliefs, political or other opinion,
membership of an ethnic minority, property, birth,
disability, age or sexual orientation
(Preamble to the Directive emphasis added)
Definition of family member
For the purposes of this Directive: family member
means:
(a) the spouse

(b) the partner with whom the Union citizen has

contracted a registered partnership, on the basis of
the legislation of a Member State, if the legislation
of the host Member State treats registered
partnerships as equivalent to marriage and in
accordance with the conditions laid down in the
relevant legislation of the host Member State
(Article 2)
Coordination of social security

In support of free movement Regulation 1408/71 - from

April 2010, Regulation 883/2004 - achieves coordination
through four main principles
discrimination on grounds of nationality is prohibited

rules to determine which countrys legislation applies

aggregation of periods of insurance and/or residence

export of (mainly long-term) benefits

Allows member state to determine who is family member

Impact of discrimination

The impact of the interface of the plethora of

partnership statuses and benefit entitlement
conditions means that same sex partners
exercising their right of free movement are
likely to find their status and entitlements
changing as they move between different
rights regimes to the detriment of their
entitlement to benefits
Example: Same sex partners
entitlement to social security: UK
The Civil Partnership Act (2004)
For income-related benefits, tax credits and child
support cohabiting same sex partners now
treated as one unit - same as different sex
partners - duty to provide reasonable
maintenance for civil partner and any children of
the family
Same sex civil partners have survivor rights to
each others pension (same as married different
sex partners)
Example: Same sex partners
entitlement to social security: Slovenia
The Same Sex Partnership Registration Act
(2005)
Same sex partners income taken into account

when determining entitlement to social

assistance
Not treated as family member or survivor in
social insurance schemes (Grega Strban,
trESS, 2008)
Unequal treatment
Equal treatment with Slovenian nationals
Entitled to individual pensions in both countries
Aggregation of UK and Slovenian periods of insurance
Pro rata payment of pensions
But only survivors rights in UK - not in Slovenia
ECJ Case C-267/06 Maruko only applies to
benefits deemed equivalent to wages

countries where surviving spouses and surviving life

partners are in a comparable situation as regards their
pension rights
Other benefits

Same sex partners may also be confronted

by loss of current or future cover when
exercising their right to free movement with
respect to other areas of social security,
including, healthcare benefits
frontier workers may move between countries
that do and do not recognise same sex
relationships with consequent complication
and loss of social security rights.
Current EU equal treatment
legislation
Current EU equal treatment legislation does
not provide an effective defence against
discrimination for same sex partners
exercising their right to free movement within
the Community as the prohibition on
discrimination based on sexual orientation
only covers employment, occupation and
vocational training.
New initiatives
On 2 July 2008 European Commission
published proposal for a Council Directive on
implementing the principle of equal treatment
between persons irrespective of religion or
belief, disability, age or sexual orientation
beyond employment, occupation and
vocational training
Principles of subsidiarity and proportionality:
This Directive does not go beyond what is
necessary in order to achieve those objectives.
Without prejudice to national laws
on marital or family status
In fact it does not go far enough to ensure protection against discrimination
for same sex partners who wish to exercise their right to free movement.
Article 3 defines the scope:
1. Within the limits of the powers conferred upon the Community, the
prohibition of discrimination shall apply to all persons, as regards both the
public and private sectors, including public bodies, in relation to:
(a) Social protection, including social security and healthcare;
(b) Social advantages;
(c) Education;
(d) Access to and supply of goods and other services which are available to
the public, including housing.
However, Article 3 also provides that:
2. This Directive is without prejudice to national laws on marital or family
status and reproductive rights.
Matters related to marital and family status are
outside the scope of the Directive

Thus matters related to marital and family

status are outside the scope of the Directive
and Member States remain free to decide
whether or not to institute and recognise legally
registered partnerships
It is only when the national law of the member
country recognises same sex relationships as
comparable to that of spouses that the
principle of equal treatment applies
A conflict of rights?
The Preamble seeks to explain and justify permitting
discrimination against same sex partners on the ground
that diversity of European societies is one of Europe's
strengths and consequently Issues such as the
recognition of marital or family status and other
similar questions are best decided at national level.

However, diversity of European societies is one of

Europes strengths only to the extent that those
societies respect the diversity of people who live within
the Community.
Undermines Treaty objectives
On 2 April 2009 the European Parliament introduced amendment
7a to the proposed Directive which provides that Discrimination
based on religion or belief, disability, age, or sexual orientation
may undermine the achievement of the objectives of the EC
Treaty
Discrimination on the grounds of sexual orientation undermines
the right of free movement which is a key objective of the Treaty
of Rome and one of the fundamental rights and freedoms of
European Citizenship
To summon up the principle of respect for diversity in order to
discrimate on the grounds of sexual orientation has the logic, but
none of the charm, of Alice in Wonderland.