A narrow pathway between fences

1. A narrow pathway between fences Seminar on free movement of same sex families in Europe European Parliament, 3 May 2011 Pál Szirányi – Permanent representation of Hungary

2. A simple question the correct diagnose: The effects of same-sex marriages and registered partnerships are currently not recognized within Europe. the missing cure: Why the EU legislator has not given any adequate answer to that problem until today?

3. Playing field dimensions • Legal basis: • Art. 81 TFEU >> EU has no competence to intervene in the substantive family law of Member States • Political feasibility: • Questions of family law are all of high political sensibility for the Member States

4. Playing field dimensions II. TFEU Title V. , Chapter 3, Art. 81 paragraph (3) – Judicial cooperation in civil matters (3) Notwithstanding paragraph 2, 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.

5. Playing field dimensions III. the power of the veto: „Rome III.” • 17 July 2006: the Commission submitted to the Council a proposal for a Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters. • 5 – 6 June 2008: the Council concluded that there was no unanimity to go ahead with the proposed Regulation and that insurmountable difficulties existed, making unanimity impossible at that time and in the foreseeable future. • On 16 April 2010 the Commission presented to the Council the package of proposals aminig at introducing ehanced cooperation in the area of the law applicable to divorce and legal separation • Council Regulation 1259/2010 of 20 December 2010 • Article 13: „Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation.”

6. Playing field dimensions IV. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

7. Playing field dimensions V. The Stockholm Programme (SP): 3.1.2. Civil law „Mutual recognition should, moreover, be extended to fields that are not yet covered but are essential to everyday life, for example… matrimonial property rights and the property consequences of the separation of couples, while taking into consideration Member States’ legal systems, including public policy, and national traditions in this area.” „The European Council invites the Commission to: — follow up on the recent study on the possible problems encountered with regard to civil status documents and access to registers of such documents. In light of the findings, the Commission could submit appropriate proposals taking into account the different legal systems and legal traditions in the Member States…”

8. Excursus: free circulation of civil status certificates • SP 3.1.2 cont.: „…In the short term a system allowing citizens to obtain their own civil status documents easily could be envisaged. In the long term, it might be considered whether mutual recognition of the effects of civil status documents could be appropriate, at least in certain areas. Work developed by the International Commission on Civil Status should be taken into account in this particular field.” • COM(2010) 747 - Green Paper of the COM: Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records

9. Excursus: free circulation of civil status certificates a personal view: distinction should be made between „form” and „content” of an authentic instrument: • „form”: the legal effects attached to the authentication • „content”: legal relationships and legally relevant facts contained in the document > these are reflected in accordance with the substantive rules of the law applicable in the MS of origin. (the „applicable law” determined by the conflict-of-law rules of the MSs is not necessarily the same in respect to the same situation in different MSs)

10. Any hope for success? „Brussels IIa.” Regulation • Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility Maintenance Regulation • Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations • Article 22: „The recognition and enforcement of a decision on maintenance under this Regulation shall not in any way imply the recognition of the family relationship, parentage, marriage or affinity underlying the maintenance obligation which gave rise to the decision”

11. Thank you for your attention!