WRITTEN QUESTION E-3261/01

by Joke Swiebel (PSE) to the Commission

(23 November 2001)

Subject: Regulation (EC) No 1347/2000 and same-sex marriages and adoption by same-sex couples in the Netherlands

On 1 March 2001, Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses(1) entered into force. On 1 April 2001, in the Netherlands, the Same-sex Marriage Act entered into force, as did the Act concerning Adoption by Persons of the Same Sex.

By letter dated 15 May 2001, the Director-General for Personnel and Administration of the Commission, Mr Reichenbach, expressed the view that all marriages contracted under Netherlands civil law should be recognised with a view to the application of the Staff Regulations at the Commission.

1. Was Mr Reichenbach right to invoke in his letter Article 1a of the Staff Regulations, which entitles officials to equal treatment irrespective, inter alia, of their sexual orientation, and Article 9 of the European Charter of Fundamental Rights?

2. Does the Commission consider that, in accordance with this interpretation, marriage and spouses as referred to in Regulation (EC) No 1327/2000 includes marriages between two persons of the same sex, contracted under Netherlands civil law?

3. Does the Commission consider that, if the intention had been to exclude from the scope of the regulation same-sex marriages, whose legalisation in the Netherlands it was already possible to foresee when the regulation was being drafted, this should have been explicitly made clear in the regulation?

4. Does Regulation (EC) No 1347/2000 also apply to the parental responsibility of same-sex spouses, which, under Netherlands law, arises automatically for the partner of a parent who has a parental relationship with the child under the law of descent?

5. Does the term spouse as used in the directives and regulations relating to free movement of citizens of the EU and other persons, such as Regulation (EEC) No 1612/68(2), include same-sex spouses under Netherlands law?

(1) OJ L 160, 30.6.2000, p. 19.

(2) OJ L 257, 19.10.1968, p. 2.

Answer given by Mr Vitorino on behalf of the Commission

(12 March 2002)

As to the specific question of the recognition of Dutch same-sex marriages for the purposes of the application of the Staff Regulations, reference is made to the Commission's reply to Written Question P-32438/01 of Mrs Buitenweg(1). In that reply of 15 October 2001 the Commission pointed out that it had reflected on how to take account of the law modifying the Netherlands Civil Code to recognise marriage between same sex couples. Following consultations within its services, the Commission has given instructions that the marriage of an official recognised under the amended Dutch Civil Code should be treated in the same way as any other marriage recognised in a Member State. The line taken in this reply is based on Article 1a of the Staff Regulations and Article 9 of the European Charter of Fundamental Rights; it is identical with the position taken by the Director-General for Personnel and Administration in his note of 15 May 2001.

As confirmed by the consistent case law of the Court of Justice(2) which has so far only dealt with the possible assimilation of unmarried partners to spouses, there are as such no provisions of Community law which define the notions of spouse or marriage; thus, as alluded to above, the Court has held that when such notions appear in legislative instruments which are intended to have consequences throughout the Community, the interpretation must take account of the

situation in all the Member States and not just in a single Member State. Further, when reference is made to social and legal developments in order to justify a dynamic interpretation of such terms, the Court has said that such developments must be visible in all the Community. On the basis of this argument, the Court concluded in the Reed case, cited below, that Article 10 of Regulation 1612/68 could not be interpreted to mean that a companion, in a stable relationship, of a worker who is a national of a Member State and is employed in the territory of another Member State, must in certain circumstances be treated as his spouse for the purposes of that provision.

In this context, the Honourable Member refers to Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses. This regulation sets out rules on jurisdiction and the recognition and enforcement of judgements in matters of divorce, legal separation or marriage annulment, as well as in matters of parental responsibility for the children of both spouses rendered on the occasion of the matrimonial proceedings.

The regulation is a private international law instrument. As regards the relations between spouses, its purpose is to establish rules on jurisdiction and to allow recognition in a Member State of a divorce, a separation or an annulment of marriage given in another Member State in accordance with the law which is applicable according to its private international law. Even if it cannot be excluded that the regulation applies to procedures concerning the divorce of a same sex couple, this does not translate into an obligation on the courts neither to pronounce or recognise the divorce nor to recognise the marriage.

The regulation also provides for the enforcement in a Member State of an order granted in another Member State in relation to parental responsibility. Therefore, parental responsibility cannot be granted by relying on its provisions. Instead, the relations between a same sex partner and the child of his or her partner are a matter of substantive family law and therefore governed by the applicable national law.

Likewise, the Honourable Member makes reference to the legislation on free movement and in particular Regulation 1612/68, which by its Article 10 creates a right of family reunion for the spouse of a worker who has exercised his right of free movement in another Member State. In line with the case law mentioned earlier, the Dutch legislation, while it can have effects on Dutch territory, does not have the consequence of extending the notion of spouse under Article 10 of Regulation 1612/68 or of imposing on other Member States an extended definition of spouse.

(1) OJ C 93 E, 18.4.2002, p. 131.

(2) Case 59/85 Netherlands v Reed (1986(ECR 1283, D v Council of the European Union (2001(ECRU I-4319.