NELFA legal service

Many LGBTIQ* parents and children are still deprived of their rights. Not only at a national level, but also when it comes to free movement rights within the European Union. Practice, however, has shown that many rainbow families have mayor problems to move. NELFA and its allies want to support you with your legal struggles!

Complaint procedures in the EU

Family Law is a competence of each EU Member State. As a result, LGBTIQ* families are not equal throughout the EU. There are different degrees of inclusion of LGBTIQ* people in the national legislation on family and parenthood (see Rainbow Map from ILGA Europe). That means that LGBTIQ* families legally established in one Member State cannot move freely within the EU since the recognition of the family will depend on the national laws of the host Member State. LGBTIQ* families do not have the Right to Freedom of Movement like all EU citizens. (Art 21 of the Treaty on the Functioning of the European Union)

It is important that LGBTIQ* families associations and individuals know how to use the complaint mechanisms in the EU in order to file complaints and raise awareness within the European Commission and Parliament. The complaints and petitions are important:

  1. to bring the unequal treatment to the attention of the Commission and Parliament
  2. to start a case collection on an EU institutions level

NELFA has created this toolkit in order to showcase the different types of procedures available. We want to make it easier for you to complain. Please, seek NELFA’s help and always keep us informed of any problems families face, via info@nelfa.org.

How can you complain in the EU?

There are 3 ways to complain and raise awareness in front of the European Commission and Parliament. You can 1) petition the European Parliament, 2) send a complaint to the European Commission, 3) use SOLVIT. See more details in the other fields.

What is the right to Freedom of movement and residence for persons in the EU?

Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship.

The Freedom of movement in Union Law:

  1. Article 3(2) of the Treaty on European Union (TEU)
    The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
  2. Article 21 of the Treaty on the Functioning of the European Union (TFEU)
    Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
  3. Article 45 of the Charter of Fundamental Rights of the European Union
    Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
  4. Directive 2004/38/EC (Article 2(2)(a) – Definition of ‘spouse’ and Article 7 – Right of residence for more than three months) and interpretation by the ECJ in Coman and others v. Romania (C-673/16, Judgement of the Grand Chamber, 5 June 2018) which defined the meaning of the term ‘spouse’ in the context of freedom of movement as “gender-neutral [and inclusive of] the same-sex spouse of an EU citizen”.

Arguments that support freedom of movement for LGBTIQ* families

The EU free movement of persons provisions prohibit national measures that obstruct the free movement of Union citizens between Member States. The refusal of the host Member State to legally recognise the familial links among the members of rainbow families can create restrictions to free movement in two ways:

  1. when this results in the refusal of family reunification rights (i.e. when some members of the family are not allowed to enter the Member State) and
  2. when it leads to the denial of a number of rights or entitlements (such as social and tax advantages) to which the family would have been entitled, if the legal ties among its members would be recognised.

Reference: Article 21 TFEU (freedom of movement) combined with Article 45 CRFEU (freedom of movement and residence) and Article 21 CRFEU (non-discrimination principle)

EU Regulations in the field of family-related cross-border situations

The EU Regulation that address jurisdiction, applicable law and recognition/enforcement in the field of family law and succession is gender-neutral:

  1. Regulation No 2201/2003 (Brussels IIa Regulation) on ‘jurisdiction’ and ‘recognition/enforcement’ in the area of matrimonial matters (divorce, legal separation and marriage annulment) and parental responsibility matters (custody, access (or visit) rights, child abduction, placement of a child). N.B.: Regulation 2019/1111 (the Brussels IIa recast), amends the provisions on parental responsibility matters of the Brussels IIa Regulation. It will apply from 1 August 2022.
  2. Regulation No 1259/2010 (Rome III) on ‘applicable law’ in the area of divorce and legal separation. It was adopted by enhanced cooperation and applies in 17 Member States (BE, BG, DE, ES, FR, IT, LV, LU, HU, MT, AT, PT, RO, SI, LT, EL, EE). Applicable law provisions on parental responsibility matters are contained in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children;
  3. Regulation No 4/2009 (the Maintenance Regulation) on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the area of maintenance obligations (towards, for example, ex-spouses and children);
  4. Regulation 2016/1103 and Regulation 2016/1104 on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the areas, respectively, of the property regimes of marriages and the property regimes of registered partnerships. These were adopted by enhanced cooperation and apply in 18 Member States (SE, BE, EL, HR, SI, ES, FR, PT, IT, MT, LU, DE, CZ, NL, AT, BG, FI, CY);
  5. Regulation No 650/2012 (the Succession Regulation) on ‘jurisdiction’, ‘applicable law’ and ‘recognition/enforcement’ in the area of succession (inheritance).

Arguments from the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the EU

  1. The right to family and private life is protected under Article 8 of ECHR and Article 7 of EUCFR. The European Court of Human Rights has clarified in numerous judgments that Article 8 ECHR is breached where there is de facto family life and the host State refuses to recognise the legal status of those family ties as formally recognised in the country of origin.
  2. The prohibition of discrimination is established by Article 14 ECHR and Article 21 EUCFR. The European Court of Human Rights has clarified that the prohibition of discrimination extends to grounds of sexual orientation and gender identity (Salgueiro da Silva Mouta v. Portugal, application no. 33290/96, 21/12/1999, §§28 and 36)
  3. The failure of the host EU Member State to recognise the legal links between the child in a rainbow family and both of his/her parents – as these have been legally established elsewhere – can clearly amount to an unjustified breach of the prohibition of discrimination on the ground of sexual orientation, as this is laid down under Article 21 EUCFR

Arguments for Children’s Rights

  1. 24 (2) CFREU: The rights of the child: In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration
  2. Articles 3, 7 and 8 of the Convention on the Rights of the Child. All EU Member States have ratified this treaty.

a) Article 3 (1) – Best interests of the child. All   actions concerning the child shall take full account of his or her best interests. The State shall provide the child with adequate care when parents, or others charged with parental responsibility, fail to do so.

b) Article 7 – 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

c) Article 8 – 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Submit a Petition to the Committee on Petitions of the European Parliament (webpage)

Any citizen of the EU, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the EU’s fields of activity and which affects them directly. Any company, organisation or association with its headquarters in the European Union may also exercise this right of petition, which is guaranteed by the Treaty.

A petition may take the form of a complaint or a request and may relate to issues of public or private interest.

The petition may present an individual request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter.

Such petitions give the European Parliament the opportunity of calling attention to any infringement of a European citizen’s rights by a Member State or local authorities or other institution.

A Petition to the European Parliament can be submitted online here.

The Petitions Committee is responsible for the examination and admission of any petition.

A petition may take the form of a complaint, a request or an observation concerning problems related to the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter.

Your petition may therefore give the European Parliament the opportunity to call attention to any infringement of a European citizen’s rights by a Member State, local authorities or other institutions.

Submit a complaint to the European Commission (webpage)

You can contact the European Commission about any measure (law, regulation or administrative action), absence of measure or practice by a country of the European Union that you think is against Union law. The complaint can be submitted by post or online (email). The Commission will only accept your complaint if it is about a breach of Union Law by authorities in an EU country.

The complaint has to involve a public authority. It is important when you submit the complaint to include exactly which Union Law you think has been be breached. If you don’t know, please seek the assistance of a lawyer or look up in the article where NELFA states the laws that are breached in Freedom of Movement cases.

How to submit a complaint to the EC?

  1. Use the standard complaint form to submit your complaint by post or via email. You may fill out the form in any of the official EU languages.
  2. describe exactly how you believe that national authorities have infringed Union law, and which is the Union law that you believe they have infringed. Give details of any steps you have already taken to obtain redress.
  3. Try to be as precise as possible (easier for the Commission to understand how the issue falls within the scope of EU law).

How does the EC address your complaint?

  1. The European Commission will confirm to you that it has received your complaint within 15 working days.
  2. The European Commission will invite you to resubmit your complaint in case you have not used the standard complaint form.
  3. Within the following 12 months, the European Commission will assess your complaint and aim to decide whether to initiate a formal infringement procedure against the country in question.
  4. If the issue that you raise is especially complicated, or if the European Commission needs to ask you or others for more information or details, it may take longer than 12 months to reach a decision. You will be informed if the assessment takes longer than 12 months.
  5. If the European Commission decides that your complaint is founded and initiates a formal infringement procedure against the country in question, it will inform you and let you know how the case progresses.
  6. Should the Commission contact the authorities of the country against which you have made your complaint, it will not disclose your identity unless you have given your express permission to do so.
  7. If the European Commission thinks that your problem could be solved more effectively by any of the available informal or out-of-court problem-solving services, it may propose to you that your file be transferred to those services.
  8. If the Commission decides your problem does not involve a breach of Union law, it will inform you by letter before it closes your file.
  9. At any time, you may give the European Commission additional material about your complaint or ask to meet representatives of the European Commission.

When will a complaint NOT be recorded?

  1. Anonymous/ no complete address if the complaint leads to contacts with the MS, the complainant can tick a bow requesting their name not to be disclosed to the MS.
  2. No reference to a Member State
  3. Acts or omissions or a private person or body
  4. Failure to set out a grievance
  5. Setting out a grievance to which the Commission has adopted a clear, public and consistent position, which shall be communicated to the complainant
  6. Setting out a grievance clearly falling outside the scope of Union law”

 

Positive aspects of the EU Complaint Procedure

  1. Allow grasroots groups to reach out directly to the EC in a formal procedure
  2. Requests detailed information => get a clear piture of the situation, including national proceedings that are ongiong
  3. The form is not restrictive, and allows a more complex issue to be expressed in the words of the plaintiff (especially useful when activists are not sure wether it is a matter of EU law)
  4. Flexibility in terms how to send it out: can be submitted in all EU languages, by email, post and fax
  5. Important precedents in cases related to environmental legislation: infringement following civil society complaints => effectiveness
  6. Infringement is not like a court case: opportunity to initiate dialogue with the Member State targeted by the complaint

Downsides of the procedure

  1. Lengthy
  2. Requires the support of a legal expert to address in proper detail all issued => no follow-up necessarily from the EC to ask for clarification
  3. Difficulties in submission/registration
  4. Unclear and untransparent procedure regarding follow-up with national authorities
  5. Unclear guarantees and outcome, which undermindes the role of the EC as a guardian of the treaties and monitor of MS infringements of EU law

Outcome – possible decisions

  1. At each stage, the complaint is to be informed about developments of the case/ decision adopted
  2. Pre-closure: 4 weeks deadline before closure for complainants to dubmit more/ new information
  3. Transfer to SOLVIT (file closed)
  4. Transfer to EU Pilot (file closed) => contact with the Member State; the complainant is informed of the different steps taken with the Member State
  5. Transfer to NIF (file closed) => opening of an infringement => the case as such is closed but referred to in the infringement case and the complainant is informed of the developments
  6. Other: no registration in CHAP, withdrawal by the complainant
  7. Breach of EU law by repetitive administrative practices: can lead to infringement when there is “sufficiently documented and detailed proof of the alleged practice of the national administration and/ or courts
  8. EC Complaint mechanism very important => allows to document the extend of the issue

Complaint European Commission Summary

Any EU citizen can submit a complaint to the EC when there is a belief that Union Law is breached by a Member State. The procedure can be long and there is no guaranteed outcome, but it gives a chance to LGBT Families to be heard and get noticed by the EC.

SOLVIT (webpage)

What is SOLVIT?

SOLVIT is a service provided by the national administration in each EU country and in Iceland, Liechtenstein and Norway. SOLVIT is free of charge.

It is mainly an online service. Although there is a SOLVIT centre in each country, the best way to contact them is via this website.

SOLVIT aims to find solutions within 10 weeks – starting on the day your case is taken on by the SOLVIT centre in the country where the problem occurred.

In detail…

  1. Network of civil servants in each MS
  2. Solve problems caused by incorrect application of EU law by an authority in another country
  3. At least 2 MS involved
  4. Avoid recourse to legal proceedings (time and cost)
  5. Provide real and quick solutions to problems
  6. Mostly to address administrative practices/ issues/ misunderstandings (not legislation)

Requirements and procedure?

  1. Not any national proceedings (appeal or other cases before national jurisdictions)
  2. The situation can either go directly to SOLVIT

Or the complaint gives agreement for transfer (form to be sent to EC)

When can SOLVIT help?

SOLVIT can help you when:

  1. your EU rights as a citizen or as a business are breached by public authorities in another EU country and
  2. you have not (yet) taken your case to court (although we can help if you’ve just made an administrative appeal).

Typical issues SOLVIT can help you with and likely affect LGBTIQ* families

Visa & residence rights, family benefits, pension rights, working abroad, unemployment benefits, health insurance, access to education

How SOLVIT works?

Your case will be handled by 2 SOLVIT centres:

  1. your local SOLVIT centre – home centre
  2. the SOLVIT centre in the country where the problem occurred – lead centre.

Once you’ve submitted your problem to SOLVIT, the home centre will:

  1. contact you within 1 week and, if necessary, ask you for further information
  2. check whether or not your problem falls within SOLVIT’s remit
  3. prepare the case and send it to the lead SOLVIT centre.

You will be regularly informed on the progress of your case by the home SOLVIT centre. Feel free to contact them if you need an update on how your case is progressing.

When it receives the case from your home SOLVIT centre, the lead SOLVIT centre will:

  1. confirm within 1 week whether or not they will accept the case
  2. try to find a solution to your problem together with the responsible authority.

The target deadline for solving problems is 10 weeks from when the lead SOLVIT centre accepts your case.

 

SOLVIT Summary

SOLVIT is an online service and free of charge. You can submit a problem if you haven’t taken your case to court. It is a good first step to any problem as it involves the administrations of 2 different countries who try to find a solution. Not all problems can be taken on by SOLVIT.

In September 2018, NELFA has started a case collection of rainbow families in cross-border struggles (freedom of movement). It is updated on a regular basis (January 2020). If you have your own experiences and struggles, please share them with us and write an Email to: info@nelfa.org!

In spring 2019, our friends from ILGA-Europe just started a new blog concerning the important Coman case judgment at the European Court of Justice in Luxembourg (June 2018). You will find very useful information about your freedom of movement and how to start a complaint whenever you face difficulties. NELFA is monitoring the legal situation in Europe – so please, keep us in Cc (info@nelfa.org)!

NELFA supports several interventions at the European Court of Human Rights in Strasbourg. In July 2019, we contributed to written comments in A.D.-K. and Others v. Poland. The document was elaborated by Professor Robert Wintemute. It’s about the recognition of a British birth certificate (stating two mothers) in Poland. Furthermore, NELFA and other NGOs (led by the Helsinki Foundation for Human Rights) submitted a joint amicus curiae brief in a case concerning the citizenship for children of a gay couple (Schlittner-Hay v. Poland). And finally, ILGA-Europe and others like NELFA sent third party interventions in A.S. v. Poland (later withdrawn) and X. v. Poland. In both cases, mothers lost their custody rights because of their lesbian relationships. Read more here. (photo: www.camebridgeblog.org)

In July 2019, NELFA has started its legal support group. This is mainly a mailing list of activists, legal experts and LGBTIQ* family lawyers. Whenever rainbow families face legal difficulties, we will be able to contact high-level insiders. Just write us: info@nelfa.org. By the way: NELFA works closely together with Euro FLI, a network of LGBTIQ* family lawyers. Read the press release here.

NELFA’s individual member Alina Tryfonidou (Professor at University of Reading/UK) analysed the Coman case judgment. Her report (January 2019) deals with the positive outcome for rainbow families, but also points out some important limitations. (photo: Alina Tryfonidou)

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©2020 NELFA aisbl 845937097 - Network of European LGBTIQ* Families Associations - Greetings to all LGBTIQ* families, friends, activists out there.

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