Gay and lesbian rights : EU or member state competence?

Abstract

In this thesis I will attempt to analyse to which extent the European Union can address and take measures in areas of law that are of direct relevance to the rights of gay men and lesbians. These rights range from those that traditionally feature also in national law, such as the right to equal treatment, the right to seek asylum protection under the criminal law, and the right to respect for private and family life, to certain other rights that come into play due to the nature of the EU legal system, such as the right to free movement. I will therefore start by giving a brief outline of the system of division of competences between the EU and its Member States, and the conditions under which the EU might exercise its powers. Then I will proceed to discuss fundamental rights protection in the EU, and the importance of European Court of Human Rights case law in this context, given this Court's extensive jurisprudence on the fundamental rights of lesbians and gay men. Following this, I will delve into two specific policy areas that have attracted much attention in recent years: social policy and the creation of an area of freedom, security and justice. The impact that the latter will have upon the rights of same-sex couples will be given particular attention given the traditional assumption that family law is an area of exclusive national competence. Finally, I will delve into the question of the implications that the establishment of European Union citizenship might have on the whole discussion.