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Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition

Alina Tryfonidou

This paper will examine the issue of the legal recognition of same-sex relationships in EU free movement law. The paper will begin by providing a brief overview of the (mainly inexistent) protection of LGBT rights in the EU. It will be explained that the EU does not have the competence to regulate family issues and, hence, the question of whether same-sex couples can marry or enter into a registered partnership is left for each Member State to decide. The main question, however, is whether a Member State that does not allow same-sex couples to formalise their relationship in its territory is free, also, to refuse to recognise such relationships legally entered into in another Member State. The paper will argue that whatever the rationale behind the grant of family reunification rights to Union citizens, same-sex relationships should be treated in exactly the same way as opposite-sex relationships, and should, thus, be recognised by the host Member State in the same manner as are the latter. Moreover, in order to ensure the effectiveness of these rights, the host State must not draw any distinction between same-sex and opposite-sex couples in the areas of taxation, pensions, social assistance, and social security. It will be suggested that it mainly falls on the Court of Justice - as the EU's constitutional court and guarantor of the fundamental rights of the Union citizen - to make it clear that same-sex relationships legally entered into in one of the Member States must be mutually recognised across the EU.

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