What did EU Commissioner Reding really say about the “mutual recognition of same-sex marriages”?

Posted on | December 10, 2010 by J.C. von Krempach, J.D. |

On the website of the European Parliament’s “Intergroup on LGBT Rights” (always a very good source of information on the schemes and thoughts of Europe’s homosexual lobby), there is a story on the European Commission having issued “a clear statement on mutual recognition of same-sex unions.”

A clear statement on mutual recognition of same-sex unions??

What the LGBT lobby is referring to is the answer given by Commissioner Viviane Reding to a written question by a Member of the European Parliament, Mr. Oreste Rossi. The Commissioner’s statement was in fact rather blurred, its evident purpose being to please everyone (both supporters and opponents of same-sex marriages). It is only the LGBT lobby that has turned it into what it calls “a clear statement” in order to manipulate and mislead the public. I therefore publish the full text of the Question and the answer.

Q: “Yesterday (7 September 2010) in Strasbourg, Commissioner Reding made the following statement: ‘If you live in a legally-recognised same-sex partnership, or marriage, in country A, you have the right — and this is a fundamental right — to take this status and that of your partner to country B’. This presumably means that, if same-sex marriages are recognised in Spain, the rights they confer on the couples involved should be recognised and guaranteed in all the other Member States as well. The Commissioner’s extremely dangerous statement places at risk the Member States’ social and cultural harmony. It would be inconceivable to impose a legal framework of rights for same-sex couples indiscriminately on all the Member States, regardless of whether they support it. Yet the Commissioner went on to threaten the national governments with ‘harsh measures’ if they did not take steps to eliminate discrimination against same-sex couples.

The Commissioner’s statements conflict with the principle of ‘unity in diversity’ which underpins the European Union.

In view of the foregoing, does the Commission endorse Commissioner Reding’s statements?”

A: (with the bits left away on the LGBT Intergroup’s website in bold) The Commission cannot support the viewpoint expressed by the Honourable Member that the statement given by the Vice-President responsible for Justice, Fundamental Rights and Citizenship at the Parliament on 7 September 2010 conflicts with the principle of “unity in diversity”.

It is for the Member States to decide whether or not they provide in their internal legal order for same-sex unions, including marriage. The EU cannot adopt substantive legislation in this area.

Without prejudice to national legislation on family law, discrimination based on sexual orientation in the implementation of EU law by the Member States is prohibited by Article 21 of the Charter of Fundamental Rights.

Member States implement Union law, for example, when applying the provisions on free movement to Union citizens and their family members wishing to move from one Member State to another.

Under EU law on free movement, family members can accompany Union citizens having exercised their right to freedom of movement or residence, irrespective of the sexual orientation of the persons involved. The exercise by EU citizens of their rights to free movement and residence, as provided by EU law, has to be complied with by Member States and does not require that the Member States provide in their internal legal order for same-sex unions.”

I comment:

Free movement of persons is a fundamental freedom under the EU Treaty. It applies to all citizens, including homosexuals.

However, as we have seen in the context of the deportation of gipsies from France, this freedom has a precise meaning. It means that citizens of one EU Member State have the right to move to another EU Member State, if they find a job and a home there. The principle does as such not prevent France to send home Romanian or Bulgarian citizens who have no home and no job in France.

The EU Free Movement Directive (2004/58/EC) provides that an EU citizen using this freedom may bring along his family. Failing this, the each family member would himself/herself have to fulfil the conditions for free movement.

The Directive, in its Article 2 (2), defines as “family member” the following:
“(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member
State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);”

(Note that this definition is made solely for the purpose of the Directive and does not pretend to provide a general definition of the term “family”!)

But the term “spouse” is itself not defined in the Directive. This does create a problem when different Member States start defining “spouse” differently. (It certainly would not be a problem if, as was the case until ca. 10 years ago, there was no difference in the meaning of “spouse” between different Member States. The responsibility for this new problem clearly lies with those Member States who unilaterally have sought to change the meaning of the term, such as the Netherlands, Belgium, Spain, Portugal, Sweden)

Quite obviously, the fundamental principle “freedom of movement” does not in and by itself oblige Member States to recognise same sex marriages contracted in another Member State. Nor does the Directive contain such a provision.

In the absence of a common definition of “spouse”, there are the following possibilities:

1. The EU could proceed to harmonise the term “spouse”. There is an EU competence for doing that, but there also is an obstacle to overcome: Article 81.3 of the Treaty on the Functioning of the EU (the TFEU) foresees a special procedure for measures affecting Family Law, requiring that such measures are adopted by unanimity. Each Member State has therefore the possibility to block the attempt.

2. The EU could decide to do nothing. That would in practice mean that the host country would continue to interpret the term “spouse” in its own way (i.e. NL, BE, ES, PT, SV would recognise “same-sex spouses”, the others not. In the latter countries, the same-sex partner would himself have to fulfil the conditions for immigration).

3. The EU could, as is apparently the intention of the LGBT lobby, propose to apply a country-of-origin-principle on “spouses”, as it does in many other areas. Obviously, this would lead to absurd results, especially to a new kind of “same-sex-marriage-tourism”. For example, two gay men from Poland could det married in Spain and then return to Poland claiming that the Polish State must recognise their Spanish marriage certificate.

This could be done theoretically, but the legal basis would once more be Art 81.3 of the TFEU, so that unanimity among Member States would be required.

4. The fourth possibility is actually the most dangerous one, as it includes judicial activism. It would consist in bringing a case to the ECJ who would then decide on the correct interpretation of the word “spouse” in the Directive. It seems improbable that the Commission would itself dare to drag to the Court for failing to comply with the Directive a Member State not recognisng a same-sex ‘marriage’ contracted abroad , but it could be that a prejudicial question is brought to the Court from some judge in a Member State, and then the Commission might intervene at the Court saying that it believes that “spouse” includes same sex partners. Much of the current debate looks in fact like an attempt to preemptively manipulate the Court in that way. And chances are that the Court would give a surprising “autonomous” interpretation to spouse… Unfortunately, the activism of judges is a very great risk in the EU.

But with a view to such potential legal activism, it should be reminded here that during the negotiations leading to the adoption of the Directive, the hypothesis of applying a “country-of-origin principle” to “same-sex spouses” was explicitly discussed and rejected. Hence the clear formulation in Article 2(2)(b), quoted above.

The answer given by Commissioner Reding is therefore not wrong. Wrong, by contrast, is the suggestion that the competence of the EU in this field can be exercised in any other way than through a decision adopted unanimously by all Member States…

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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