Sent: 24 August 2011 01:46
To: 'SG-PLAINTES@ec.europa.eu'
Subject: Re: Complaint / Malta: Institutional discrimination on the grounds of nationality against Maltese citizens by the Maltese Ministry of Justice and Home Affairs in that whereas a third country national in a same-sex relationship with a non-Maltese EU resid
Re: Complaint / Malta: Institutional discrimination on the grounds of nationality against Maltese citizens by the Maltese Ministry of Justice and Home Affairs in that whereas a third country national in a same-sex relationship with a non-Maltese EU resident in Malta may nowreside, work and enjoy Freedom of Movement in Malta, a third country national in a same-sex relationship with a Maltese citizen is not permitted to do so.
Dear Secretariat-General,
The substance of this complaint was published by Maltatoday on Tuesday, August 23, 2011, as follows:
1) Freedom of movement: same-sex relationships recognised, but not for Maltese nationals.
Freedom of Movement directive fully transposed but leaves Maltese in same-sex relationships with third country nationals enjoying less protection.
The Malta Gay Rights Movement and human rights Aditus have welcomed the full transposition of the Freedom of Movement Directive, but said the updated law now creates an anomalous situation where relationships of Maltese citizens with a third country national of the same sex enjoy less protection than those of other EU nationals in the same situation moving to Malta.
The MGRM and Aditus said they regretted that the change only came about after infringement proceedings by the European Commission.
Since April 2010, Malta and EC officials had 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 only recognised partners “in a durable relationship” with EU citizens 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.
The MGRM and Aditus said the situation now had created an anomalous situation where, a South African national in a relationship with a Belgian citizen would be allowed to enter, reside and work in Malta; whereas the same person in a relationship with a Maltese citizen would not.
“This amendment is welcome but it in no way replaces the necessity for the introduction of comprehensive legislation recognising same-sex couples. It is regrettable that a number of same-sex couples are forced to leave Malta in order to sustain their relationship each year,” Gabi Calleja, MGRM coordinator said.
Aditus chairperson Dr. Neil Falzon added that this was a clear example of how European Union membership strengthened the recognition and enforcement of fundamental human rights.
2) The input of the European Commission as well as the removal of the legal clause that discriminated against non-Maltese EU citizens in same-sex relationships has been reported in the Maltese print media as follows:
Maltatoday, Monday, August 15, 2011:
Malta removes discriminatory clause in free movement law
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 Maltacould 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, Maltapreviously 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.
Source: http://www.maltatoday.com.mt/
3) Maltatoday, Friday, August 19, 2011: Same-sex couples: AD welcomes freedom of movement legislation.
‘………..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.”………..’
Source: http://www.maltatoday.com.mt/
In view of the fact that the Directorate of Citizenship and Expatriate Affairs has already been cited in Complaint No: CHAP (2011) 00735, which measures has the Commission taken to monitor and enforce the word for word implementation of the Freedom of Movement Directive (2004/38/EC) in this and many other EU civil rights irregularities?
In this regard, please see:
4) Apart from the specifications of ‘Freedom of Movement’, as detailed in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the provisions of Article 18 of the Lisbon Treaty on the Functioning of the European Union -- which prohibit discrimination on the basis of nationality between citizens of the Union with regard to matters within the scope of application of the Treaties -- have a direct bearing on this complaint.
5) Reversion to the Maltese national authorities as a means of redress is futile as their institutional structures are unfit for purpose:
A) (National) Court cases, which frequently result in ambiguous judgements, can take decades to conclude and are therefore, not a feasible option.
B) Seeking redress and remedy through the offices of the Maltese Ombudsman is likewise pointless in this matter as its regulations stipulate that the Ombudsman will refuse to deal with a complaint if ‘the person submitting the grievance is considered to have insufficient personal interest in the complaint’.
Given that I am a non-Maltese EU citizen, any complaint I submitted to the Maltese Ombudsman would be disqualified on those grounds of having insufficient personal interest in the complaint.
Source: Section 9: On what grounds can the Ombudsman refuse to deal with a complaint?
http://www.ombudsman.org.mt/
In addition, the recommendations made by the Maltese Ombudsman are routinely ignored by the Maltese authorities.
Source: The Times of Malta, Thursday, August 26, 2010: Ombudsman regrets Enemalta’s hard attitude:
http://www.timesofmalta.com/
6) I submit that this instance of institutional discrimination on the basis of nationality against Maltese citizens is in violation of European Union law.
7) Should it be deemed appropriate to pursue investigations in this matter, I authorise theEuropean Commission to disclose my identity in its contacts with the Maltese authorities against which this complaint is made.
8) In essence, it is manifestly evident that with regard to the civil rights of Maltese and non-Maltese EU citizens alike, Malta has not yet comprehended, still less implemented elementary tenets of European Union membership, urgently
I look forward to hearing from you soon.
Yours faithfully,
Oisin Jones-Dillon
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