Unsurprisingly, the Commission’s draft legislation on parenting in the EU (see EUROPE 12600/23) is already causing a stir before it is even born.
Wednesday 25 August saw the end of the public consultation on this initiative, which was strongly supported by the President of the institution, who pledged to ensure the mutual recognition of parenthood amongst the EU27 (see EUROPE 12561/3) and thus put an end to the legal limbo that currently prevents some LGBTIQ+ families from moving or settling wherever they wish in the EU and leaves, in some cases, children temporarily stateless (see EUROPE 12599/22).
The surprisingly high number of comments sent to the Commission in the framework of the consultation and the content of these comments say everything about the complexity of the file and the legislative work to come.
A total of 760 opinions were registered by the institution. And while these consultations are generally more popular with NGOs, almost all (95.13%) of the 760 opinions were written by European citizens, the plurality of whom were Hungarian.
Hungary is indeed the most represented Member State among the respondents, with 31% of the contributions (233 in total). This is followed by Slovakia (177 opinions—23% of contributions), the Czech Republic, then France, Germany, Poland, and Italy.
As for the content of these opinions, it oscillates between encouragement and virulent criticism.
The “key” to resolving cross-border disputes
Among the contributions in favour of the project was that of the European Association of Civil Registrars (EVS)—an organisation bringing together the civil registrars’ associations of Belgium, Estonia, Germany, Italy, Poland, Romania, Scotland, Slovakia, Slovenia, and the Netherlands.
The association claims that EU citizens “are in need and cannot make sufficient use of their right of free movement”. It specifies that “judicial and administrative facts and decisions on civil status made in one Member State are still not always acknowledged or are treated differently by another Member State”.
Furthermore, the EVS states that “current family law and private international law within the Member States is both incomplete and insufficient in cross-border relations concerning civil status events in general and parenthood in particular”.
The European institutions have “the key” to resolving “cross-border civil status conflicts”, according to the association, which therefore “supports” the European initiative.
The European Network on Statelessness (ENS), on the same line, recalls in its opinion that two cases currently before the EU Court of Justice concern the non-recognition of parenthood (see EUROPE 12654/21).
“In both cases, the children concerned were at risk of statelessness when they were born, as their mothers’ countries of nationality had discriminatory birth registration laws or practices”, the NGO said.
Violation of the principle of subsidiarity
Most of the respondents who expressed their opposition to the project denounced the risk of infringing the principle of subsidiarity.
An opinion signed by the Spanish ultra-conservative group CitizenGO—echoing the opinions of Austrian, French, and Polish organisations—refers to an initiative “that seeks to violate the sovereignty of the Member States”.
“The imposed measures are a gross interference with the family law and the legal status of persons who, under the EU Treaties, fall entirely within the competence of the Member States. The European Commission inception impact assessment confirms this fact”, writes the Bulgarian NGO Society and Values Association.
The Commission recognises in its impact assessment that the substantive law of parentage falls within the competence of the Member States. However, it recalls that “the Union may adopt measures concerning family law with cross-border implications under Article 81(3) of the TFEU” (see EUROPE 12699/21).
Many other responses claim that this initiative is a “pretext” to “force” Member States to “recognise same-sex parenthood”.
All these contributions give a clear idea of the debates to come within the institutions and, in the first place, the Commission. (Original version in French by Agathe Cherki)