and which is to be transposed into law by member states, requires all member states to facilitate entry and grant residency rights to EU citizens involved in same-sex marriages and partnerships enacted in other member states.

A spokesperson for European Commissioner for Justice, Freedom and Security Franco Frattini has confirmed to The Malta Independent on Sunday that a host member state, for example Malta, will have the ability to undertake an “extensive examination of the personal circumstances and shall justify each refusal of entry or residence to these persons.”

The directive in question, 2004/38/EC, relates to the right of EU citizens and their family members to move freely within the EU, as well as providing further rights in the area of family reunification.

The directive’s aim is to provide residency rights to those people not falling within the definition of “family members” and to a partner with whom an EU citizen has a “duly attestable durable relationship”. Such a relationship caters for a number of different life situations, including same-sex spouses, registered partnerships, and other legal partnerships and cohabitation, the spokesperson added.

Prior to the directive, a major difficulty in anti-discrimination and the free movement of EU citizens within the Union was in the case of homosexuals in marriages or registered partnerships who enjoy rights from such partnerships in their home member state but who move to other member states where same-sex partnerships are not recognised. The situation has been particularly difficult in terms of family reunification rights, which, on the basis of EU laws currently in force, are not covered by registered partnerships.

The problem seems to have been addressed and resolved through the directive which, however, still has to be transposed into Maltese law.

Additionally, by virtue of Article 18 of the European Community Treaty, married couples and those in registered partnerships, irrespective of their sex, have residency rights in member states that do not legally recognise their relationship, the spokesperson added.

However, an ambiguity does present itself in the directive. Article 2 states that the regulation applies to “spouses”, which should presumably be covered by a same-sex marriage in another EU member state.

On registered partnerships, however, Malta may have an opt-out clause in the provision that “a partner with whom the EU citizen has contracted a registered partnership based on the laws of his/her Member State of origin (will benefit from the directive), if, according to the laws of that Member State, registered partnerships are equivalent to marriage, and respect the conditions provided for by the main legislation of the receiving Member State”.

At present, 15 of the 25 EU member states allow for homosexual unions and grant couples associated rights. Three countries – Holland, Spain and Belgium – allow for same-sex marriages.

Several questions arise from the directive, not the least of which concerns the hypothetical case of a Maltese homosexual couple marrying in one of the three EU states that provide for same-sex marriages, and who then move back to Malta.

There are three types of same-sex unions recognised in different EU countries: marriage, registered partnerships and registered cohabitation, and unregistered cohabitation. Marriage, as the name implies, grants the same rights to married homosexual couples as are granted to married heterosexual couples. Registered partnerships and registered cohabitations grant specific rights and legal recognition to same-sex couples, often the same as those granted to heterosexual married couples. Unregistered cohabitation rights, meanwhile, are accrued after a specified period of cohabitation.

The rights granted from such unions are wide-ranging and include the granting of an identical fiscal and tax status as a married heterosexual couple, welfare benefits, inheritance tax exemptions, custody of a partner’s children through next-of-kin rights, survivor’s pension rights, tenancy rights and maintenance payment obligations.

While Malta, Poland and Italy have indicated the stiffest resistance to same-sex marriages and unions, Cyprus, Greece, the three Baltic States, and Slovakia allow for no such rights. Ireland, meanwhile, is discussing a Civil Partnership Bill in parliament.

All other EU member states have one form or another of same-sex partnerships, marriages or cohabitation rights.

The spokesperson added: “Combating discrimination on the grounds of sexual orientation is an essential part of the fight against homophobia. The Commission is conscious that legislative action needs to be accompanied by other initiatives aimed at preventing the act of discrimination, humiliating practises, prejudices and stereotypes. These actions are to raise public awareness and provide specific and pertinent information on this issue.

“The EU and the Commission in particular have to act within the powers granted to it by the Treaties. For example the Commission can instigate infringement proceedings against a Member State, but only if there has been a violation of fundamental rights as recorded in the context of community law, for example where there is an instrument based on Article 13 of Treaty of the European Community.”