During the Plenary Session of the European Parliament, scheduled for the 24th of November, the assembly will vote on the "Report on civil law, commercial law, family law and private international law aspects of the Action Plan Implementing the Stockholm Program".

The purpose of this report is to compel each Member State to both mutually recognize and legally uphold the "effects of civil status documents" of another EU-state. The report deals with the issue of a cross-border harmonization within the European Union. The purpose of the law is initially geared toward an efficient operation of government.

Besides the reasonable demands that report makes, in many respects, a major issue remains- as seen in paragraph 40 of the document, which could imply an EU-wide de facto recognition of same-sex marriage through a back door and severe overstepping of the principle of subsidiarity.

Paragraph 40 wants to give civil documents, including marriage, to be given de facto legal effect throughout the EU by requiring Member States to grant “all social benefits and other legal effects attached to it”. This could mean that Member States would be forced to indirectly recognize same-sex unions as equal to marriage even if such recognition does not exist in the respective country’s legal system.

Paragraph 40 of the Berlinguer Report reads as follows:

40.  The European Parliament stresses the need to ensure mutual recognition of official documents issued by national administrations; welcomes the Commission’s efforts to empower citizens to exercise their free movement rights and strongly supports plans to enable the mutual recognition of the effects of civil status documents; calls for further efforts to reduce barriers for citizens who exercise their rights of free movement, particularly with regard to access to the social benefits to which they are entitled and their right to vote in municipal elections;

If the report passes as drafted now, it would violate severely the principle of subsidiarity, a key founding principle of the EU. There is an obvious risk to undermine the sovereignty of the Member States in family law and specifically the definition of marriage in their own country by shifting a definition of marriage from family law – which is an exclusive competence of the Member States - to procedural law (mutual recognition of civil law documents, Stockholm program).

Furthermore, since the implementation of the Stockholm program is a legal act of the European Union, it needs to respect the non discrimination article 21 of the Charter of Fundamental Rights. A Member State’s “refusal to acknowledge the ‘married’ status of a same-sex couple and its effects would fall under the non discrimination clause and therefore deemed illegitimate.

This would mean a de facto establishment of an EU-wide right to same-sex marriage. The consequence would be an uncontrollable “marriage-tourism” to countries that recognize same-sex “marriage” (as recognized in Belgium, Spain, Portugal, Sweden) or even polygamous “marriages” (notarial contract of cohabitation as recognized in the Netherlands.

Members of Parliament need to be alerted about this as soon as possible! Your reaction will have an impact! Please write an email to the MEPs of your country telling them that:

  • Your concern about Paragraph 40 of the report (using the arguments above)
  • That Article 40 needs to be amended and that the report should clarify that no policy of the Stockholm Program with regard to the mutual recognition of the effects of civil status documents issued by national administrations should affect in any way the competency of Member States to legislate in the family policy, specifically in defining the legal terms of "family" and "marriage".

Full document Report on civil law, commercial law, family law and private international law aspects of the Action Plan Implementing the Stockholm Program.