Europese Ombudsman neemt klacht van homo's tegen Spaanse autoriteiten wegens discriminatie niet in behandeling (en)

The European Ombudsman, P. Nikiforos Diamandouros, has confirmed that the European Commission's decision not to pursue an inquiry against the Spanish authorities into allegations of discrimination based on sexual orientation was reasonable. During the Ombudsman's inquiry into the case, the Commission explained that the problem encountered by the complainants falls beyond the scope of Community law at its current stage of development and suggested that redress be sought at the national level. In line with the Commission's suggestion, the complainants have lodged a complaint with the Spanish Ombudsman, who could be in a position to help them.

The European Ombudsman works closely with his counterparts in the European network of ombudsmen to help ensure that citizens' fundamental rights are protected at all levels of the European Union. He has therefore sent a copy of his decision to the Spanish Ombudsman. The decision can be found on the European Ombudsman's website at:

http://www.euro-ombudsman.eu.int/decision/en/031687.htm

The case

The complainants - a Spanish national and an Argentine national - submitted a formal complaint to the Commission against the decision by the Spanish authorities to refuse one of them a family reunification visa. According to the complainants, the refusal was based on the fact that they are of the same gender and thus constitutes discrimination based on sexual orientation, which, they argued, is contrary to Community law. In their complaint to the Ombudsman, the complainants alleged that the Commission had not handled their complaint properly, and that it had interpreted the applicable Community rules in an unduly restrictive fashion. They stressed that Community law was pertinent for the solution of their problem, and that the Commission should have started infringement proceedings against the Spanish authorities for the violation of a number of EU rules, in particular Article 13 of the EC Treaty prohibiting discrimination and Articles 20 and 21 of the EU Charter of Fundamental Rights, as well as the provisions of Directives 2000/78 on equal treatment in employment, and 2000/43/EC concerning discrimination based on racial or ethnic origin.

The Commission argued that the problem encountered by the complainants falls beyond the scope of Community law at its current stage of development. It explained that Article 13 of the EC Treaty can only be used as a legal basis in matters which fall within the Community's remit, which is not the case for family law. The same reasoning applies to Articles 20 and 21 of the EU Charter of Fundamental Rights. The institution stated that the two Directives adopted on the basis of Article 13 of the EC Treaty, Directives 2000/43 and 2000/78, are not applicable to the situation, while its proposed directive on family reunification only applies to nationals of a Member State who have exercised the right to free movement. In addition, its proposed directive on the right of Union citizens and their family members to move and reside freely within the territory of the Member States extends the right to family reunification to non-married partners, only if the legislation of the relevant Member State grants identical rights to married and unmarried couples. The Commission therefore suggested that the complainants seek redress at the national level.

For further information, please call Mr José Martinez Aragón, Principal Legal Adviser,
tel. +33 3 88 17 24 01.