EU member-states could be forced to recognise same-sex marriages contracted in other member-states if a 
controversial proposal in a new European Commission green paper is made law.
The paper, ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’, says its aim is to ‘remove bureaucratic obstacles to free movement of labour’.
The paper will be considered by member-states and will eventually come before the Council of Ministers which will decide whether it should become law. It is likely to encounter opposition. Family law is supposed to be outside the competence of the EU and is reserved to member-states.
However, the paper shows how one competence, or power, in this case of free movement of labour, can be used to interfere in an area that is supposed to be aside the jurisdiction of the EU.
The green paper says that different rules regarding marriage certificates constitute an obstacle to free movement of labour and among the solutions it proposes is the automatic recognition by EU member states of marriages contracted in other member states.
Although this is not explicitly stated in the paper, the implication is that same-sex marriages contracted in countries like Spain and the Netherlands would be automatically recognised in Ireland and other member states where such marriages are not currently recognised.
As an alternative, the paper proposes the development of a body of common EU rules developed in the European Union to enable citizens to fully exercise their freedom of movement “while providing them with greater legal certainty in relation to civil status situations created in another Member State”.
The paper says that the requirement “to present public records to the authorities of another Member State in order to provide the proof needed to benefit from a right or to comply with an obligation” constitutes a serious obstacle to the freedom of movement of EU citizens.
Such public records can be administrative documents, notarial acts such as property deeds, civil status records such as birth or marriage certificates, miscellaneous contracts or court rulings.
Often, it says, documents such as marriage certificates “are not accepted by the authorities of a Member State without bureaucratic formalities that are cumbersome for citizens”.
Meanwhile, a report suggesting that the lack of same-sex marriage in most EU member states amounts to discrimination is set to be voted on in the European Parliament today.
The document, entitled the Kinga Gal report, is intended to set out the Parliament’s position on the state of fundamental rights in the EU.
Paragraph 2 of the document refers to “discrimination against same-sex marriages and civil-partnership couples”.
CARE Europe, a pro-family, pro-religious freedom NGO active at EU level, is urging MEPs to vote against the report.
David Fieldsend, director of CARE, said that there had been no parliamentary resolution adopted “to indicate the settled majority will of the European Parliament” on the issue.
He added that “the definition of marriage has always been considered a sovereign Member State competence”.
Speaking earlier this month to the EU news website, EUobserver, the man who drafted the report, Kinga Gal, a Hungarian centre-right MEP, appeared to agree.
“That [marriage] is absolutely a subsidiarity issue [competence of national governments]. It is not exactly the best example for where FRA can contribute to a change in policy,” Mr Gal said.