FREE MOVEMENT OF PEOPLE IN THE EUROPEAN UNION AND RECOGNITION OF SAME-SEX MARRIAGES ON THE EXAMPLE OF POLAND, IRELAND AND FRANCE

Yıl 2021, , 29 - 37, 24.02.2021

Karolina Bicz

https://doi.org/10.26809/joa.6.1.04

Öz

The article presents the issue of the free movement of persons in the European Union in the field of same-sex marriage rights, taking into account comparative elements. The research presents provisions of the European Union, as well as internal regulations in force in France, Ireland and Poland. The article discusses the approach to the analysed issue at the level of EU regulations and internal regulations of the examined Member States. Moreover, the interaction between EU and national regulations is an important research point. Besides the article shows case variants concerning the recognition of same-sex relationships due to the legal and ideological conditions in the analysed countries Also, the article analyses the impact and importance of the Court of Justice of the European Union and the European Court of Human Rights for the studied topic. In addition, the study takes into consideration the impact of constitutional provisions on the legalization of homosexual couples in the analysed countries. The article is divided into parts covering the following issues: free movement of persons in the European Union, the right to family reunification of European Union citizens, relations between European Union law and the internal law of the Member States, recognition of same-sex marriages in France, Ireland and Poland, and summary. The opinions of A. Tryfonidou, H. Verschueren, P. Tulea and M. Bell were included in the study due to their importance to the research are,

Anahtar Kelimeler

.Free Movement of Persons in European Union, The Right to Family Reunification, The Rights of LGBTI People in The European Union.

FREE MOVEMENT OF PEOPLE IN THE EUROPEAN UNION AND RECOGNITION OF SAME-SEX MARRIAGES ON THE EXAMPLE OF POLAND, IRELAND AND FRANCE

Öz

The article presents the issue of the free movement of persons in the European Union in the field of same-sex marriage rights, taking into account comparative elements. The research presents provisions of the European Union, as well as internal regulations in force in France, Ireland and Poland. The article discusses the approach to the analysed issue at the level of EU regulations and internal regulations of the examined Member States. Moreover, the interaction between EU and national regulations is an important research point. Besides the article shows case variants concerning the recognition of same-sex relationships due to the legal and ideological conditions in the analysed countries Also, the article analyses the impact and importance of the Court of Justice of the European Union and the European Court of Human Rights for the studied topic. In addition, the study takes into consideration the impact of constitutional provisions on the legalization of homosexual couples in the analysed countries. The article is divided into parts covering the following issues: free movement of persons in the European Union, the right to family reunification of European Union citizens, relations between European Union law and the internal law of the Member States, recognition of same-sex marriages in France, Ireland and Poland, and summary. The opinions of A. Tryfonidou, H. Verschueren, P. Tulea and M. Bell were included in the study due to their importance to the research are.

Anahtar Kelimeler

.Free Movement of Persons in European Union, The Right to Family Reunification, The Rights of LGBTI People in The European Union.

Kaynakça

• ACT OF JULY 14, 2006 on the entry into the territory of the Republic of Poland, residence and departure from this territory of citizens of the European Union Member States and their family members. Journal of Laws 2019.293.
• BELL, M. (2002). We are Family - Same-Sex Partners and EU Migration Law. Maastricht Journal of European and Comparative Law. 9(4), 335-356.
• BROWN, J. (2016). Human Rights, Gay Rights, or Both: International Human Rights Law and Same-Sex Marriage, Florida Journal of International Law. 217-240.
• CALDEIRA G.A. & GIBSON J.L. (1995). The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support. The American Political Science Review. 89(2), 356-376.
• CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, Journal of Laws of the EU C.2007.303.1.
• CITIZEN INFORMATION, RIGHTS OF SAME-SEX COUPLES, [online], https://www.citizensinformation.ie/en/birth_family_relationships/cohabiting_couples/rights_of_same_sex_couples.html [Access Date: 13/08/2020].
• CITIZENS INFORMATION, CIVIL PARTNERSHIPS, [online], https://www.citizensinformation.ie/en/birth_family_relationships/civil_partnerships/civil_partnership_and_same_sex_couples.html [Access Date: 13/08/2020].
• CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT (2010). Number 24 of 2010.
• CONSTITUTION OF IRELAND. .
• CONSTITUTION OF THE REPUBLIC OF POLAND OF APRIL 2, 1997, Journal of Laws 1997.78.483.
• CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ROME, 4.XI.1950
• COSTELLO, C. (2009). Metock: free movement and “normal family life” in the Union. Kluwer Law International. 46(2), 587 - 622.
• CUYVERS, A. (2017). Free Movement of Persons in the EU, UGIRASHEBUJA E., RUHANGISA E.J., OTTERVANGER T., CUYVERS A. (ed.), East African Community Law, Brill, Leiden, Boston, ISBN: 978-90-04-32207-3.
• DAVIES, A.C.L., BOGG, A. & COSTELLO, C. (2016). The role of the Court of Justice in labour law, Bogg A., Costello C., Davies A.C.L., (ed), Research Handbook on EU Labour Law. Cheltenham, Nothampton: Edward Egler Publishing, ISBN: 978178347 1119.
• DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF APRIL 29, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and amending Regulation (EEC) no. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, Journal of Laws of the EU L.2004.158.77.
• DUNNE, P. (2015). Civil Partnership in an Ireland of Equal Marriage Rights. Irish Jurist. 53(1), 77-99.
• EUR-LEX, DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 29 APRIL 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC), [online], https://eur-lex.europa.eu/legal-content/EN/NIM/?uri=CELEX:32004L0038 [Access Date:13/08/2020].
• GUILD, E. (2016). Free Movement of EU Citizens and Their Family Members. New Journal of European Criminal Law. 7(2), 231-249.
• GYENEY, L. (2018). Same Sex Couples' Right to Free Movement in Light of Member States National Identities: The Legal Analysis of The Coman Case, Iustum Aequum Salutare. 14(2), 149-172.
• HAMILTON, F. (2018). The case for same-sex marriage before the European Court of Human Rights. Journal of Homosexuality. 65(12), 1582–1606.
• JACOBI, H.A. (2011) A Furstin by any Other Name - European Citizenship and the Limits of Individual Rights in the E.C.J. Columbia Journal of European Law.17(3), 643-672.
• JUDGEMENT OF THE COURT OF JUNE 5, 2002. Baumbast, C-413/99, EU:C:2002:493. .
• JUDGEMENT OF THE COURT OF JUNE 5, 2018. Coman, C‑673/16, EU:C:2018:385. .
• JUDGEMENT OF THE COURT OF OCTOBER 7, 2010. Lassal, C-162/09, EU:C:2010:592. .
• JUDGEMENT OF THE COURT OF SEPTEMBER 20, 2001. Grzelczyk, C-184/99, EU:C:2001:458. .
• JUOZULYNAS, L. & ŚMISZEK, K. (2011). The Equal Jus Legal Handbook to LGBT Rights in Europe, Equal Jus, Brussels.
• Loi n° 2006-911 du 24 juillet 2006 relative à l'immigration et à l'intégration (1), NOR: INTX0600037L. .
• Loi n° 2013-404 du 17 mai 2013 ouvrant le mariage aux couples de personnes de même sexe. .
• Loi n° 99-944 du 15 novembre 1999 relative au pacte civil de solidarité, NOR: JUSX9803236L. .
• MACLENNAN, J. & WARD, A. (2020). The Constitutional Dimension of Case C-673/16 Coman on the Prohibition of Discrimination on the Basis of Sexual Orientation: The Role of Fundamental Rights in Interpreting EU Citizenship. Columbia Journal of European Law. 26(2), 36-62.
• MARRIAGE ACT 2015. Number 35 of 2015. .
• Opinion of Advocate General Geelhoed delivered on 5 July 2001, Baumbast, C-413/99, EU:C:2001:385.
• Opinion of Advocate General Tesauro delivered on 14 December 1995, P v S and Cornwall County Council, C-13/94, EU:C:1995:444.
• OPPENHEIMER, B, OLIVEIRA, A. & BLUMENTHAL, A. (2014). Religiosity and Same-Sex Marriage in the United States and Europe. Berkeley Journal of International Law. 32(1), 195-238.
• RODGERS, G. (2018). Being Gay in Ireland: Resisting Stigma in the Evolving Present. London: Lexington Books, ISBN: 1498555500.
• RYAN, F. (2015). Ireland’s Marriage Referendum: a Constitutional Perspective. DPCE Online. 2, 1-21.
• S.I. No. 548/2015. European Communities (Free Movement of Persons) Regulations 2015.
• STAINES, M. (1976). The Concept of the Family under the Irish Constitution. Irish Jurist. 11(2), 223-242.
• TREATY ON EUROPEAN UNION, Journal of Laws 2004.90.864/30. .
• TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION, Journal of Laws 2004.90.864/2.
• TRYFONIDOU, A. (2015). EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition. Columbia Journal of European Law. 21(2), 195-248.
• TRYFONIDOU, A. (2019). The EU top court rules that married same‑sex couples can move freely between EU member states as “spouses”: case C‑673/16, Relu Adrian Coman, Robert Clabourn Hamilton, Asociaţia Accept v Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne. Feminist Legal Studies. 27(2), 211–221.
• TULEJA, P. 2019, Art. 18 the principle of protection of marriage and family, [in:] TULEJA P. (ed.), Constitution of the Republic of Poland. Commentary. Warszawa: Wolters Kluwer Polska, ISBN: 978-83-8160-970-8.
• VERSCHUEREN, H. (2015). Free Movement of EU Citizens: Including for the Poor. Maastricht Journal of European and Comparative Law. 22(1), 10-34.
• WAALDIJK, K. (1996). Free Movement of Same-Sex Partners. Maastricht Journal of European and Comparative Law. 3(3), 271-286.
• WĄSIK M. 2020, Non-recognition in Poland of Same-Sex Relationships Concluded Abroad – Legal Aspects from The Perspective of The Free Movement of Persons. European Studies – Studies in European Affairs. 24(1), 129-149.