Wednesday, 9 December 2009

Times: Ask your MEP - The principle of non-discrimination

Wednesday, 9th December 2009 by Simon Busuttil

The Times recently gave prominent coverage to a proposal submitted in the European Parliament to recognise same-sex marriages. The proposal was eventually replaced by an amendment I tabled. But, understandably, it created a great deal of controversy - both in Malta and elsewhere in Europe - and it calls for a clear explanation of what exactly took place in Strasbourg last month.

First of all, the context.

Parliament was voting on a resolution relating to the so-called Stockholm Programme, which is the European Union's road map for the establishment of an area of freedom, justice and security.

The programme covers a vast range of issues spanning from civil liberties to terrorism and from immigration to visa-free travel. In all these areas, the European Parliament is now fully involved as a co-legislator.

But because it also covers civil liberties, the resolution became embroiled in a controversy over one single paragraph - out of about 150 - that called for the recognition of same-sex marriages contracted in other EU countries. This paragraph, pushed by the Liberal group, called on "Member states to ensure that the principle of mutual recognition is also applied to same-sex couples in the EU - notably married couples, partners or de facto couples - at least in relation to rights relating to freedom of movement".

The issue of discrimination on grounds of sexual orientation is not new to the European Parliament.

My position and that of my political group, the EPP, is that we uphold the principle of non-discrimination, including on the basis of sexual discrimination, which is already part of EU law. We are, therefore, committed to co-operate to combat discrimination and to strive towards a more inclusive society, including the gay community.

A number of countries, including Malta, are even preparing to legislate in order to afford a set of rights and obligations to cohabiting couples, including same-sex couples. They are free to do so.

However, we do not favour same-sex marriage and, therefore, we do not support the obligation to recognise same-sex marriages contracted in other EU countries.

We consider that countries are and should remain free to decide for themselves whether they want to legalise such marriages and, indeed, this matter is not within the EU competence. Nor should it be.

Likewise, we consider that member states should not be required to recognise same-sex marriages contracted in other EU countries. So far, just four EU countries have legalised such marriages, namely, the Netherlands, Belgium, Sweden and Spain. Others may follow suit. But it should be up to them to do so not the EU.

This is why our group opposed the insertion of this paragraph in the final resolution on the Stockholm Programme and this reference, if included, would have precluded us from supporting the final resolution.

But unlike us, many other groups in the European Parliament do favour such an approach - especially the principle of mutual recognition of same-sex marriages - and that is why the issue is deeply divisive.

Ahead of last month's plenary session, intense negotiations were undertaken to try and find a way out of this impasse. It was not easy.

As the EPP spokesman on this area, I was in charge of negotiations on this issue and I approached other groups in order to find a compromise that a majority could live with.

I proposed that the principle of mutual recognition should be applied only in the case of countries that have already legalised same-sex marriages. In other words, if a same-sex couple gets married in Belgium, their marriage should be recognised in, say, the Netherlands or Spain where such marriages are already legal, but not in, say, Italy or Malta, where they are not. This proposal was not accepted by the Liberals because they felt it did not go far enough.

In the event, an alternative compromise was found with the Socialist group on another wording which stated that "without prejudice to national legislations on family law", EU countries should "ensure freedom of movement to EU citizens and their families, including registered partnerships and marriages, according to articles 2 and 3 of Directive 2004/38/EC, avoiding all kinds of discriminations on all ground including sexual orientation".

This compromise wording had the benefit of recognising the principle of non-discrimination on all grounds.

But at the same time it preserved the right of individual countries to decide for themselves on issues relating to family law. It also removed any reference to mutual recognition.

This means that EU citizens who have entered into a same-sex marriage can benefit from freedom of movement within the EU - like all other EU citizens - but this would not entail a recognition of their married status in other EU countries.

It's a fine balance and, as is often the case, when you strive to reach a compromise you do not make everyone happy. But it was a reasonable compromise and that is why it obtained the support of a strong majority.

The compromise replaced the original paragraph that we opposed and, therefore, enabled my group to support the entire resolution on the Stockholm Programme, which reflects political priorities that our group holds close to heart, such as the all-important policy of combating illegal immigration and of ensuring an effective solidarity in the area of asylum.

The issue of non-discrimination will not stop here. It will come again.

But this episode teaches us that this is not a zero-sum game and that there are parameters that need to be respected. The principle of subsidiarity, allowing individual countries to decide for themselves on such sensitive matters, is one of them.

Dr Busuttil is a Nationalist member of the European Parliament. []

[Click on the hyperlink above to view the comments on the Times' website.]

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