European Integration

The myth, as if European Union obliges Georgia to legalize gay marriage, is misleading

27 September, 2014

The Association Agreement between Georgia and EU does not address gay marriage. However, among other issues, the Agreement speaks about protection of minority rights and ensuring equal opportunities. In particular, EU and Georgia agree that they will strengthen dialogue and cooperation with respect to fight against all forms of discrimination, including against discrimination on the grounds of sexual orientation.

In May 2014, within EU visa liberalization action plan, the Georgian Parliament adopted law on Elimination of All forms of Discrimination. The purpose of the law is to provide for equal rights under Georgian law to all social groups, including sexual minorities. Nevertheless, this law does not address gay marriage.

The competencies of EU governing bodies and those of member countries are separated. While the monetary, customs and trade policy are within exclusive competencies of the EU, the member countries decide independently on issues of marriage and family law. Therefore, EU has never discussed recognition of gay marriage in member countries or in the candidate member countries.

Even the approach of member countries with respect to gay marriage is not uniform. Gay marriage is allowed in 7 countries from 28 EU member countries (including Denmark, Sweden, Portugal, Spain, Belgium, France and Netherlands). The Netherlands plans to recognize gay marriage from 2015. Apart from this, in the UK gay marriage has become allowed starting from 2014 in England, Scotland and Wales, but is prohibited in Northern Ireland.

In 9 member countries of EU, while gay marriage is not allowed, but same sex couples may register (civil) partnership (Austria, Croatia, Czech Republic, Germany, Hungary, Slovenia, Finland, Malta and Ireland). The civil partnership creates proprietary and nonproprietary rights, including inheritance and custody of children. The European Court of Justice (ECJ) in 2012 held, that the person in civil partnership should have the same right to benefit from social allowances as those in the usual registered marriage.

In those EU member countries, in which gay marriage is recognized (except Portugal), the same sex couples have right to adopt children. As to those countries, in which registered partnership is allowed, the same sex couples may only adopt biological child of a partner. The only exception is Malta, where same sex couples have full right to adopt children.

10 member countries of EU allow for neither gay marriage nor civil partnership (Italy, Greece, Poland, Romania, Slovakia, Estonia, Lithuania, Latvia, Bulgaria and Cyprus). In Poland, Lithuania, Latvia, Slovakia and Bulgaria, same sex marriage is prohibited under the constitution. At the same time in Hungary and Croatia, in which registered partnership is allowed, prohibition of gay marriage is provided also under constitution.

The diverse treatment of EU member countries of gay marriage has been reflected in the European Court of Human Rights (ECtHR) case law. In a case heard in 2014 against Finland, the Court held that gay marriage is not a human right. According to the Court, there was not a consensus across EU with respect to gay marriage and therefore, contracting parties of the European Human Rights Convention may decide this issue according to their discretion.

Giorgi Noniashvili

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