Modern Thought Crimes – Or Simply A Different View – Part Two

EDW
June 12, 2012

Text on the poster:

“A number of European countries legally recognise same sex partners and have introduced laws allowing them to marry or register their unions. These laws differ from country to country and provide different levels of recognition, protection and rights.

However, there are still many European countries which do not legally recognise same-sex partnerships and some even introduced legal provisions specifically excluding same-sex couples from marriage.” (Source: ILGA Europe)

Comment:

This poster focuses attention on legal inconsistencies in European approaches to marriage and the family. Although it is not stated explicitly, the poster conveys a clear message: EU Member States that provide legal recognition to same-sex partnerships are modern, up-to-date, and tolerant; but EU Member States that still do not legally recognise same-sex partnerships — or which have even introduced legal provisions to exclude same-sex couples from marriage — are intolerant and retrograde.

By hosting and co-financing the photo exhibition of which this poster forms part, the European Commission appears to have joined ILGA-Europe in praising some of its Member Countries while making critical judgments about others. But on which legal basis is the Commission acting?

According to the EU Treaty, it is the exclusive competence of individual Member States — not the European Commission — to regulate issues related to marriage and the family. Although Article 81 of the Treaty on the Functioning of the EU (TFEU) gives the EU competence to adopt measures that ensure “judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases,” this does not imply broader competence. More importantly, the phrase “judicial cooperation” does not in any way imply a competence for the EU to legislate on the substance of family law. Furthermore, as stipulated in Article 81.3 of the TFEU, all measures on judicial cooperation concerning family law must be adopted unanimously by EU Member States.

Given that there is no common European position on whether or not same-sex couples should be given any legal status (or whether or not homosexual couples should be considered “families”), it is awkward for the European Commission to take any position on this issue. It is also inappropriate for the Commission to publicly praise some Member States while criticizing others.

“Rule of law” concerns should have instead compelled the Commission to call attention to those Member States which, by allowing same-sex couples to enter into registered partnerships or marriage, have unilaterally and without consultation breached the pre-existing universal consensus on marriage and family. It is precisely those Member States who are most responsible for the legal fragmentation and inconsistencies that are deplored on this poster.

As the European Union’s executive body, the European Commission must base its actions solely on the mandate given to it by its Member States. Given the unambiguous provision on marriage and family law in Article 81 TFEU, the Commission’s purview is very clear: It has no mandate whatsoever to take a position on such matters — nor does it have the right to spend taxpayers’ money on a publicity campaign in which it takes the side of some Member States against others. This poster does a disservice to all Europeans.