Tenuous European links to same-sex marriage

It is undeniable that an increasing number of countries are recognizing same-sex relationships, either as a marriage or a civil partnership, and that there are movements within the Council of Europe and the European Union for a greater recognition of these formal relationships. However, the current position is that in neither the case law of the ECtHR nor in any proposed EU “black letter law” is there an indication that this will become a pan-European requirement in the short- to medium-term.

Against this background, in its post EU proposal is behind same-sex marriage furore”, the UK Independence Party makes the assertion

“An EU Report due to be voted through the EU Parliament this November [2013] would see all marriages and civil contracts conducted in any EU country become legally binding in all other member states. Under the Berlinguer Report, a couple who are not permitted to marry in their home country could travel to another member state in order to wed, knowing that on their return home they would have to be regarded as married.

Paragraph 40 of the Report would mean that any member state would have to grant ‘all social benefits and other legal effects’ such as legal recognition, tax breaks and benefit entitlements to a married couple, even if such a marriage did not exist in their own legal system”.

It continues

“Mr Farage said: “Now we know why David Cameron has launched this highly contentious and disruptive legislation, apparently out of the blue.

“If a couple were to marry in Belgium, Spain, Portugal or Sweden where same-sex marriage is possible, the EU will say that they have to be given the same legal rights in whichever member state they then chose to live – even if that state itself opposes the introduction of same-sex marriage. In essence the Berlinguer Report seeks to establish an EU-wide right to same-sex marriage.

“It’s no surprise that the Prime Minister has kept quiet about this, even at the expense of cohesion in his own party. He has a hard enough time trying to force his own backbenchers to swallow both his dedication to keeping Britain in the EU and his wish for the state to interfere in the definition of marriage. To suggest that the two issues are in fact interconnected would have caused complete uproar.””

Quite so – it would, if matters were as straightforward as that.  But they’re not.

Legislative background

European Union

The EU Report is entitled “Legislative proposal on mutual recognition of the effects of certain civil status documents”, and is clearly marked with the caveat

“This indicative roadmap is provided for information purposes only and is subject to change.  It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content and structure.”

The document forms part of the Action Plan Implementing the Stockholm Programme referred to in the Green Paper Commission Communication COM(2010) 171 final, “Delivering an area of freedom, security and justice for Europe’s citizens”.  The EU Report describes the objectives as: reducing obstacles to the free movement of citizens; and guaranteeing the continuity and permanence of the civil status situation to European citizens exercising their right to free movement.  In response to the questions

  • Is EU action justified on grounds of subsidiarity?
  • Why can Member States not achieve the objectives of the proposed action sufficiently by themselves?, (Necessity Test)
  • Can the EU achieve the objectives better? (Test of EU Value Added),

it states that these issues result from differences between national legal systems; the elimination of the problem therefore cannot be achieved sufficiently by the Member States.  The options being considered range from “soft law” to legislative instruments, and include:

  • the status quo;
  • assisting national authorities to find practical solutions; Offering legal security to citizens on the cross-border effects of a legal situation;
  • legislative instruments based on the automatic recognition of civil status; and
  • legislative instrument based on harmonization of rules on conflicts of laws,

[Note: these bullet points required some paraphrasing of the original incomprehensible European-English legalese]. The Report stresses that “in accordance with the proportionality principle, the chosen option will not go beyond what is necessary in order to achieve its objective”. Nevertheless, as Richard North of EU Referendum points out, the EU Report is an “own initiative” proposal of the European Parliament and as such has no legislative status.

Furthermore, the competence of the Commission to act in this area is limited by Article 81 (3) TFEU (Treaty on the Functioning of the European Union) which states

“… measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.”

Council of Europe

At the 1081st meeting of the Ministers’ Deputies on 31 March 2010, the Committee of Ministers adopted Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Appendix of which includes:

24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.

25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live, [emphasis added].

In addition to these non-binding recommendations, it is pertinent to note the view of the ECtHR in Schalk and Kopf v Austria, (Application No. 30141/04) 24 June 2010 and cited in Gas and Dubois v France (Application no. 25951/07) 15 March 2012, that whilst holding that the right to marry within Article 12 could not in all circumstances be limited to two persons of the opposite sex, (para 61), it was unwilling to impose its own views in the absence of an European consensus, (paras. 62 and 63).


There is a political dimension to recent events in the UK that links same-sex marriage issues with those on the relationship with the EU and the Council of Europe.  The rise in popularity of UKIP indicated in recent opinion polls is important, since the parti’s views will impact on the opinions of its supporters as well as on those of rival political parties.  It is no surprise, therefore, to learn that during the same-sex marriage debate in the House, a leading Conservative blogger, Archbishop Cranmer, (no relation), was sent an email by UKIP Intelligence suggesting that “if Parliament does not ‘regularize’ its civil-partnership/marriage provisions to accord with an imminent EU diktat, it would be imposed on the UK regardless”.  Whilst the site’s post was entitled “Is the EU behind Cameron’s gay-marriage conviction?” it did not support the claim.

An increasing number of countries are recognizing same-sex marriage on grounds of equality and non-discrimination.  At the time of the judgement in Schalk and Kopf v Austria, a total of six states permitted same-sex marriage, (para. 27); In Europe, there are now eight states: Norway; Belgium; Portugal; Spain; Sweden; Netherlands; Iceland, (27 June 2010); Denmark, (15 June 2012).  These are likely to be followed by England and Wales, Scotland and France, but not Northern Ireland.

As long as legislation on issues such as these requires unanimity, it is likely to be some time before pan-European requirements are introduced within the EU.  However, within the Council of Europe, the ECtHR is more likely to take into consideration the position in the majority of its member countries: but in this case there are 47 countries, not 27.