WRITTEN QUESTION E-3261/01 by Joke Swiebel (PSE) to the Commission. Regulation (EC) No 1347/2000 and same-sex marriages and adoption by same-sex couples in the Netherlands.
Date: 2001-11-23
Institutions: European Parliament, Provisional data
Subjects: EU law - national law, European citizenship, European official, LGBTIQ persons, Netherlands, marriage, matrimonial law, parental responsibility, regulations for civil servants

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Official Journal of the European Union

EN

6.2.2003

(2003/C 28 E/002)

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?

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

Does the Commission consider that, if the intention had been to exclude from the scope of the
3.
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?

Does Regulation (EC) No 1347/2000 also apply to the parental responsibility of same-sex spouses,
4.
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

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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.

(2003/C 28 E/003)

WRITTEN QUESTION E-3396/01

by Stavros Xarchakos (PPE-DE) to the Commission

(12 December 2001)

Subject: Definition of the terms ‘minor’ and ‘major’ in the European Union

Commissioner Vitorino, who informed me in writing (on 20 November 2001) that the definition of the
is the sole responsibility of the national authorities and not that of the
terms ‘minor’ and ‘major’
Community, completely avoided answering my question E-2821/01 (1)

This attitude lays the Commission and its Commissioner open to criticism, since the question immediately
arises as to why the European Union and the Commissioners responsible for social policy or internal
affairs are so passionately outspoken in their condemnation of, for example, child labour in third-world
countries, while remaining coldly indifferent and unconcerned with regard to the distinction between
‘minors’ and ‘major’ within the Union itself. It is also significant that the Commission uses these terms in
its own official reports and in the employment figures it publishes with no regard for the confusion thus
created and the resulting unreliability of the relevant statistics.