Wednesday, 17 August 2011

MaltaToday: Malta removes discriminatory clause in free movement law

EU same-sex couples are no longer discriminated under 'public policy' excuses inserted in Matlese law. (Photo: Ray Attard/Mediatoday)

After 12 months of EU pressure, Malta finally adheres to spirit of foundational EU law on freedom of movement.

The Maltese government has buckled under pressure from the European Commission and removed a legal clause that discriminated against EU nationals in same-sex relationships.

Since April 2010, Malta and EC officials have been locked in talks on the interpretation of the free movement directive (2004/38/EC).

Specifically, Maltese legislation that was supposed to have transposed EU law recognised partners “in a durable relationship” with EU citizens only if such relationships were not in “conflict with the public policy of Malta”.

This interpretation has meant that same-sex couples moving to Malta would not enjoy the same rights they are entitled to across the EU.

But despite Malta’s absolute policy of non-recognition of same-sex marriages, registered partnerships or any form of same-sex relationship, the Freedom of Movement Directive is obligatory.

A legal notice has now been published, deleting the discriminatory clause.

While opening the door to equal rights for same-sex and opposite-sex partners of any EU citizen, the director of citizenship and expatriate affairs is also being empowered to undertake an “extensive examination of the personal circumstances” of such couples, and will have to justify any denial of entry to residence of unmarried partners or other couples who claim to have a “durable relationship.”

The Freedom of Movement Directive gives certain rights to family members of EU citizens, irrespective of their nationality and sexual orientation, to move freely and reside in any EU member state.

The Maltese government previously maintained that the freedom of movement directive had been correctly transposed. But the European Commission had already stated that Malta could not deny any EU citizen in a same-sex relationship the same rights it gave to an EU citizen in a heterosexual relationship.”

Failing to recognise a same-sex union would mean that EU citizens in a civil union would lose their civil status if they relocated to Malta, together with the rights and responsibilities attached to that status. Where one member of the couple was a third-country national, Malta previously denied the right to freedom of movement by refusing to facilitate entry and residence, as required by the directive.

This ultimately resulted in the couple being required to move to another EU member state that does not discriminate on the basis of sexual orientation.

The coordinator of the Malta Gay Rights Movement, Gabi Calleja, welcomed the amendment. “I’m glad the Maltese government has adhered to the spirit of the law. One has to see whether public policy will reflect such change,” Calleja told MaltaToday.

Malta does not recognise gay partnerships legally. The removal of the discriminating clause means EU citizens in a relationship with third-country nationals will be recognised in the same way that divorces registered abroad, are recognised in Malta.

The incorrect transposition of the directive had been also discussed in a meeting between MGRM and justice and home affairs minister Carmelo Mifsud Bonnici, who reportedly denied any knowledge of the issue and stated his preference for dealing with such situations on a case-by-case basis.

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