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Although this is not stated explicitly, the poster conveys a clear message: countries that provide legal recognition to same-sex partnerships are “modern”, “up-to-date” and “tolerant”. Countries that still do not legally recognise same-sex partnerships or even introduce legal provisions to exclude same-sex couples from marriage are intolerant are retrograde.

There is, however, no explanation why, and in regard to what, the legal recognition of such partnerships constitutes real “progress”. Homosexuality, it appears, is fashionable – and no further questions must be asked.

The European Commission, by hosting this exhibition and co-financing it, appears to join ILGA Europe in sharing out this praise and criticism.

But on which legal basis is the Commission acting?

According to the EU Treaty, it is the exclusive competence of Member States to regulate issues related o the family and the personal statute. Article 81 of the TFEU gives the EU competence to adopt measures that ensure “judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases.” “Judicial cooperation”, however, does not imply a competence for the EU to legislate on the substance of family law. Moreover, according to Article 81.3of the TFEU, all measures on judicial cooperation concerning family law must be adopted by unanimity.

Given that there is no common European position on whether or not same-sex couples should be given any legal status, or whether they should be considered to constitute “families”, it is awkward for the European Commission to take a position on this issue, and to give visible support to some Member States, while attacking others. If anything, the Commission could have criticised those Member States which, by allowing same-sex couples to enter into registered partnerships or marriage, have unilaterally and without consultation breached the pre-existing universal consensus on marriage and family. It was those Member States who are responsible for the legal fragmentation and inconsistencies that are deplored on the poster.

As the European Union’s executive, the European Commission must base its actions on the mandate given to it by the Member States. Given the very clear and unambiguous provision on family and marriage law in Article 81 TFEU, it seems self-evident that the Commission has no mandate to take a position on those matters, let alone to spend taxpayers’ money on a publicity campaign in which it takes side with some Member States against others.

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