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Madam President, it is clear that the right to free movement and residence of EU citizens and their family members is one of the cornerstones of the EU. It is not only a fundamental right but also a personal right.
Article 21 of the Treaty is very clear and gives effect to that right. The ban on discrimination, including discrimination at the level of sexual orientation, is a cornerstone of the EU and is also recognised in another Article 21, but this time of the Charter of Fundamental Rights.
The directive has brought a very significant improvement for same-sex couples. I would like to thank Parliament, because it was Parliament which really pushed this through. EU law has provided, for the first time, for the right of both same-sex and different sex couples to move and reside freely within the European Union.
That said, it is implicit that if you are allowed to move freely and to reside freely, then you must also have the same rights at your second place of residence as you do at your first place of residence. It is for the Member States, as has been said, to decide whether or not they provide for registered partnerships or for a legal order, but what we are gradually seeing is more and more Member States moving in the direction of either recognising or allowing same-sex marriages.
The directive is very modern in that respect because it does not distinguish between same-sex couples and couples of the opposite sex. Actually, the directive is neutral on this. It allows such situations to happen and for couples to express themselves and to have this right. In that sense it is not necessary to amend the directive.
How this directive is implemented in practical terms is another matter. The directive in itself is not the problem, but rather the interpretation of the directive. For the Commission it is very clear that the directive must be applied with full respect for the principle of the prohibition of discrimination on the grounds of sexual orientation.
The Commission has to ensure the correct application of EU law. This means the Commission has to monitor whether, in applying the directive, Member States respect fundamental rights, including the prohibition of discrimination on the grounds of sexual orientation – the well-known Article 21 of the Charter.
The Commission attaches great importance to eliminating any obstacle restricting the right of free movement and residence, and will continue to work with Member States to make sure that the directive is applied correctly.
You will know that the Commission has adopted guidelines on better transposition of the directive. The guidelines are from July 2009, so we are now looking at the way Member States are applying those guidelines in practical terms.
The Commission welcomes the report on homophobia and discrimination on grounds of sexual orientation issued by the Fundamental Rights Agency. That report (which was drawn up at Parliament’s request) provides comprehensive and important data on the human rights of gays, lesbians, bisexuals, transsexuals and trans-gender persons.
This data is needed, and I have asked the Agency to deepen research in this area – as I declared publicly during the International Day against Homophobia on 18 May – because we need to know what is going on in practice in the Member States. The forthcoming annual report on the application of the Charter, which is due in November, will deal with discrimination and homophobia. You can count on my determination to act within the framework of the powers that the Treaty has entrusted to the Commission.
I am sure you understand that this is, for some Member States, a very delicate political and social question, because the way of looking at things is not the same all across Europe. However, the fact that more and more Member States are either recognising or applying marriages, irrespective of the sexual orientation of the partners, is a very good sign.
We have to advance step by step. We must, most of all on the basis of our guidelines, bring the Member States to accept these rules. For many this is very new and very unusual. For some it is very shocking. We have to advance cautiously, because what we do not want – and I believe all those who have spoken here of their experiences, from their hearts, understand this too – is not to be too harsh.
In saying this I am not speaking about the basic values, which are not in question, but we have to bring resisting Member States, step by step, to accept the general rules. What we do not want is to have people starting to oppose same-sex marriages, the recognition of rights and non-discrimination.
Let us see, in the report, the details of how, in the different Member States and in different regions of the Member States, things are being applied. I do not want there to be any doubts about the fundamentals, about the rights of free movement, irrespective of sexual orientation or ethnicity. These we are going to apply step by step. We will come back to this.
Some Members have given a very personal insight, and I wish to thank them. It is very important for me to grasp the sensitive nature of this issue, which is not only a matter of principle but also a matter of human beings living their personal lives. Thank you for that. I am sure that together we will manage to change the situation in the coming months and years.
In der selben parlamentarischen Aussprache meldete sich Viviane Reding später erneut zu Wort und forderte harte Maßnahmen für die Länder, die die Brüsseler Vorgaben nicht befolgen wollen:
Let me stress this. If you live in a legally-recognised same-sex partnership, or marriage, in country A, you have the right – and this is a fundamental right – to take this status and that of your partner to country B. If not, it is a violation of EU law, so there is no discussion about this. This is absolutely clear, and we do not have to hesitate on this.
This is the law today, and you can count on me to help you to enforce this. But wait, that is the law. The reality sur le terrain – in real terms – might be different, and we have to change this reality. This is the reason why I have said that we have these bilateral meetings at technical level with Member States in order to see how we can change their way of applying something which is very clear in legal terms. Permit me here to disagree with Baroness Ludford. We normally do agree in our analysis, but here, we do not.
The Directive on Free Movement does not give the Member States discretion to discriminate – no EU directive does. We should not allow a mythology to be developed saying that, actually, it is possible to discriminate. We have to be very firm on the principles. I think here we agree again, do we not?
So for me there can be no discussion about the basis of what our legal system is and how it has to be interpreted. We will try to have this applied everywhere in the same way as it is written down, and here you find me on your side.
There was a question: when is this going to happen? Now! Not in five or 10 years. I do not know about a change of mentality in the different Member States. I can just tell you about the experience which I have as a politician over so many decades. Sometimes governments are more cautious than their populations, and this has been said from personal experience in this Chamber. Sometimes the population react in a very natural, relaxed way, and the government thinks that there is a very big problem.
What I try to do is to bring the governments to understand this. If there is no understanding, then more harsh measures have to be applied.
