21 Colum. J. Eur. L. 195 (2014-2015)
EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition

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  EU FREE MOVEMENT LAW AND THE LEGAL
RECOGNITION OF SAME-SEX RELATIONSHIPS:
     THE CASE FOR MUTUAL RECOGNITION

                         Alina Tryfonidou*

    This article seeks to examine the cross-border legal recognition of
    same-sex relationships in the EU and, in particular, the treatment
    of such relationships in situations that involve the free movement
    of Union citizens between Member States. Although the Member
    States maintain an exclusive competence in the field of family law
    and, thus, it is up to them to determine whether they will provide a
    legal status to same-sex couples within their territory, they need to
    exercise their powers in that field in a way that does not violate
    EU law. This, it is suggested, requires that Member States
    mutually recognize the legal status of same-sex couples and do not
    treat same-sex couples worse than opposite-sex couples, if the
    basis of the differentiation is, merely, the (homosexual) sexual
    orientation of the two spouses/partners. Nonetheless, the current
    legal framework does not make it clear that Member States are
    under such an obligation. The main argument of the article,
    therefore, is that the EU must adopt a more hands-on approach
    towards this issue. Accordingly, it is suggested that the EU
    legislature must make a number of amendments to the current
    legal regime governing this issue, which will make it clear that
    Member States must treat same-sex migrant couples in the same
    way as opposite-sex migrant couples. Moreover, the Court must
    make it clearif and when it is given the opportunity that the
    principle of mutual recognition is fully applicable in this context,
    and it should ensure that it interprets the current legal framework
    in a way that does not lead to discrimination on the ground of
    sexual orientation.






    Associate Professor in EU Law, University of Reading.
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