EU: when asked about the FRA, the Commission doesn’t know the answer…

By J.C. von Krempach, J.D. | December 1, 2011

Following the publication by the controversial EU Fundamental Rights Agency of a report on “Homophobia and Discrimination on Grounds of Sexual Orientation”, one Member of the European Parliament, Mr. Konrad Szymanski from Poland, wanted to know what the European Commission had to say about the Agency’s absurd assertions:

In 2008, the EU Fundamental Rights Agency (FRA) published a study on ‘Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States’, which argued that:

‘… international human rights law requires that same-sex couples either have access to an institution such as registered partnership which provides them with the same advantages as those they would be recognised if they had access to marriage; (…) it follows a contrario that advantages recognised to married couples should be extended to unmarried same-sex couples either when these couples form a registered partnership, or when, in the absence of such an institution, the de facto relationship presents a sufficient degree of permanency: any refusal to thus extend the advantages benefiting married couples to same-sex couples should be treated as discriminatory.’

With regard to these findings we would like to ask the Commission to provide answers to the following questions:

1. How many EU Member States currently comply with this ‘requirement of international human rights law’ by extending all advantages recognised to married (opposite-sex) couples to unmarried same-sex couples? Which are these Member States?
2. Is the Commission aware of any other State outside the EU that complies with this ‘requirement of international human rights law’?
3. Is the Commission aware of any international convention explicitly foreseeing such a requirement that all advantages recognised to married (opposite-sex) couples be extended to unmarried same-sex couples?
4. Given the answers to questions 1 to 3, does the Commission believe that the assessment made by FRA (that ‘international human rights law requires that advantages recognised to married couples should be extended to unmarried same-sex couples’) is correct?

The Answer given by Mrs Reding on behalf of the Commission:

The European Union has no competence as regards the recognition of marriages and registered partnerships and, as result, there is no requirement under EC law for Member States to change their substantive family law or modify the national definition of marriage.

However, it should be pointed out that under Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Free Movement Directive), no distinction is made between couples of the same sex and couples of the opposite sex. The directive allows family members to accompany or join Union citizens having exercised their right to free movement and residence, irrespective of sexual orientation.

The Commission is also looking at the question of mutual recognition of civil status records when the citizens move from one country to another. In this context, the public consultation has finished only recently and the Commission is analysing the results. The Fundamental Rights Agency (FRA) is an independent organ from the Commission, based on Council Regulation (EC) No 168/2007(2) of 15 February 2007. Accordingly, its reports do not represent the views of the Commission, and sole responsibility for its reports rests with FRA.

Our comment: While Mr. Szymanski’s questions were precise and to the point, Mrs. Reding’s reply is, to say the least, evasive. In fact, she does not give any answer at all to questions 1-3. Had she done so, she would have had to say (1) that not one single EU Member State extends all advantages recognised to married (opposite-sex) couples to unmarried same-sex couples, (2) that not one single State outside the EU does so, (3) that there is no international convention explicitly foreseeing such a requirement, and (4) that the FRA Report on Homophobia is blatant nonsense.

Why did the Commissioner not give this answer? Because she supports the weird political agenda that FRA tries to falsely pass off as international human rights standard.

This being said, it comes as a positive surprise that the Commissioner is not bold enough to lend open support to FRA’s nonsensical report, and that she at least is aware that the EU has no competence as regards the recognition of marriages and registered partnerships. The remainder of her reply lets us fear that, despite this awareness, she is nevertheless going to give it a try.

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