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  1. #41
    MichaelR MichaelR is offline

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    Quote Originally Posted by sondagefaux View Post
    A lawfully valid marriage carried out in Poland is carried out under Polish law. A lawfully valid marriage carried out in Ireland is carried out under Irish law. There is mutual recognition of the validity of marriages between EU member states.

    If Ireland decides that two men can get married, and these two men move to Poland, Poland is obliged to treat them as a married couple for stated purposes, particularly for the purposes of freedom of movement, EU immigration law etc.
    I don't have an issue with this re immigration law. But I do have an issue with child custody.

    I believe that ideally the biological parent should have absolute primacy over their same-sex partner (or any other non-parent except proper adoption). Following the Referendum this is not an option in Ireland, which I recognize. But the biological parent still has an option to escape with the child to an EU country that does not recognize SSM.

    I would not want the EU to be able to force a country to take a child from the parent and hand the child to the current or former same-sex spouse of the parent. In Croatia this would probably be unconstitutional.

    Mutual recognition for stated purposes of lawfully valid marriages carried out in other member states has always been granted even among members of the EEC/EU which did not allow divorce and remarriage under their laws, Ireland being the prime example (until 1997) but also Malta until 2011.
    What if a man and a woman present to be married in Croatia, but one if them is presently in an Irish SSM? Refusing the marriage might be unconstitutional in Croatia.
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  2. #42
    sondagefaux sondagefaux is offline
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    Quote Originally Posted by MichaelR View Post
    I don't have an issue with this re immigration law
    Actually I was mistaken about EU law when it comes to freedom of movement and immigration of non-EU same-sex spouses and partners, read my amended post for more details.

    The situation is unclear, mainly due to the lack of definition of the word 'spouse' in the relevant EU Directive, which doesn't explicitly say that 'spouse' includes same-sex spouses.

    However, ECJ jurisprudence, and other provisions of EU law, including treaty provisions and provisions in the EU's Charter of Fundamental Rights, suggest that the term 'spouse' must be interpreted as including same-sex spouses and that EU states which currently don't do this are breaching EU law.

    A full discussion of the issues is given in this paper: http://www.uaces.org/documents/paper...tryfonidou.pdf

    Quote Originally Posted by MichaelR View Post
    I believe that ideally the biological parent should have absolute primacy over their same-sex partner (or any other non-parent except proper adoption). Following the Referendum this is not an option in Ireland, which I recognize. But the biological parent still has an option to escape with the child to an EU country that does not recognize SSM.
    Children are not property of their parents and the 'rights' of a parent, biological or not, to bring their child to another EU country (or any country which is party to the Hague Convention on the Civil Aspects of International Child Abduction) are constrained by the provisions of the Hague Convention.

    For example, if a woman in France gives birth to a child which is then adopted by a male same-sex couple (let's say for this example that one of them is the biological father), she cannot simply take the child and move to Poland should she decide that the child would be better off with her.

    Even if the child was brought from France to Poland by the biological mother and biological father (after the male same-sex couple split up), the Hague Convention would still apply.

    Basically if the gay male (ex-)partner or spouse (the one staying in France) had been granted custody by the French courts, the Polish courts would be obliged to enforce their decision, and the child would be returned to France to the lawful custody of whomever the French courts had decided should have custody of the child.

    Laws do not necessarily give biological parents extra rights. In most countries, the best interests of the child must be taken into account and courts aren't necessarily obliged to take biological parentage into account when deciding on custody.

    Fleeing to a country which still does take biological parentage into account when deciding on custody isn't necessarily going to work because of the relevant Hague Convention, to which all EU member states are party.

    The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
    https://en.wikipedia.org/wiki/Hague_...hild_Abduction

    Quote Originally Posted by MichaelR View Post
    I would not want the EU to be able to force a country to take a child from the parent and hand the child to the current or former same-sex spouse of the parent. In Croatia this would probably be unconstitutional.
    No it wouldn't be - see above for why. PS: the Hague Convention came into force in Croatia in 1991, long before it joined the EU.

    Since the Hague Convention, international law has recognised that parents can't just take kids across international borders because they disagree with custody decisions of courts in the country where the children are habitually resident.

    Quote Originally Posted by MichaelR View Post
    What if a man and a woman present to be married in Croatia, but one if them is presently in an Irish SSM? Refusing the marriage might be unconstitutional in Croatia.
    Croatian constitutional law doesn't permit the recognition of same-sex marriages carried out within Croatia but Croatian law does provide for same-sex registered partnerships.

    An Irish SSM would be treated in Croation law as a Croatian same-sex registered partnership (under Croatia's 'Life Partnership Act': https://en.wikipedia.org/wiki/Recogn...artnership_Act).

    Unless Croatian law permits someone who is recognised as being in a same-sex registered partnership (including someone who is recognised as such in Croatian law after entering into an SSM marriage outside Croatia) to enter into a marriage under Croatian law at the same time as being in a recognised same-sex partnership, the situation would not arise.
    Last edited by sondagefaux; 10th January 2016 at 08:57 PM.
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  3. #43
    sondagefaux sondagefaux is offline
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    Quote Originally Posted by Schuhart View Post
    Indeed, but wouldn't that require some assessment. Even if it was just to repeat what they already say about marriage on their website:
    Marriage - Your EuropeBecause there would be no reason to discuss the matter just for the fun of it. You'd expect that some conclusion would be reached.
    It will be assessed if it gets enough signatures in enough EU member states. A petition that the EU should pass a law compelling EU member states to provide free bus travel to the moon would be assessed if it was registered properly and got enough signatures in enough EU member states.

    Quote Originally Posted by Schuhart View Post
    In terms of Euro-babble, this is exactly the kind of low-key way that the EU does stuff. They never froth at the mouth. They just demonstrate their control of the EU political agenda by marginalising and ignoring views that they don't want to hear.
    No Euro-babble at all. It's always been clear that the EU Commission will only potentially make EU law on the basis of a Citizens' Initiative petition if it meets all the requirements, including the most onerous requirement, that the petition be about a matter that the EU has the legal power to make law for.

    The basic rules, which include the requirement for at least one million signatures in a sufficient number of EU member states, are set out in the EU treaties which the EU Commission has no power to amend.

    Any rules that the EU Commission proposes must be in accord with the provisions of the treaties, as interpreted by the ECJ.

    In addition, the EU Commission can only propose changes to the rules - it's up to the European Parliament and the Council to decide if the EU's Commissions proposals are acceptable or not.

    So the EU Commission is constrained by the rules set out in the treaties and the fact that it can only make proposals, not decisions.

    The main body that controls the EU's overall political agenda isn't the EU Commission. It's the European Council, the regular meetings of the EU's heads of government, which decides on the overall strategic direction of the EU. For example, if the European Council decides that the EU must cut CO2 emissions by 30% by 2050, the EU Commission will propose laws that enable this to happen. But it can't decide if those proposed laws actually become laws - that's up to the European Parliament and the Council, and any laws that they decide to pass must respect the provisions of the EU treaties.
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  4. #44
    sic transit sic transit is offline
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    Quote Originally Posted by Iphonista View Post
    This kind of malarkey will have a major effect on the Brexit referendum. The comments underneath the Daily Mail article are overwhelmingly negative.
    Brexit will be decided by people who read other newspapers, what British business says and what kinds of deals Cameron can extract from the EU. The OP is a reminder of unintended consequences and someone spotting an opportunity to push their cause.
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  5. #45
    sondagefaux sondagefaux is offline
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    Quote Originally Posted by sic transit View Post
    Brexit will be decided by people who read other newspapers, what British business says and what kinds of deals Cameron can extract from the EU. The OP is a reminder of unintended consequences and someone spotting an opportunity to push their cause.
    The comments under a Daily Mail article about the EU are overwhelmingly negative? Bears, shít, woods, Pope, Catholic etc.

    I'd forgotten about this ruling from the European Court of Human Rights which, while not being part of EU law, will affect the law in every EU state since all are party to the European Convention on Human Rights.

    Last 21 July, the European Court of Human Rights (ECtHR) in Oliari and others v. Italy had once again the opportunity to analyze the status of same-sex couples wishing to marry or enter into a legally recognized partnership. This resulted in a groundbreaking judgment, with the Court asserting that the absence of a legal framework recognizing homosexual relationships violates the right to respect for private and family life, as provided by the European Convention of Human Rights (ECHR) in article 8.

    Its relevance is twofold, as the Court poignantly plunges into the current legal situation of Italy, and at the same time builds up on the outcomes of its previous cases, Shalk and Kopf v. Austria and Vallianatos and others v. Greece, to slightly, yet significantly, extend the interpretation of the ECHR principles concerning same-sex individuals who enter stable intimate relationships.


    Facts

    The dispute at stake originated from two applications submitted by six Italian nationals in 2011. The applicants asserted that the absence of any legal provision allowing them to marry or access any form of civil union was a form of discrimination on the ground of sexual orientation, in violation of articles 8, 12 (right to marry) and 14 (non-discrimination) ECHR.

    Although in about 155 municipalities Italian same-sex couples may register in local registries of civil unions, these are of “merely symbolic value” and do not attribute any official status to the subjects concerned, and may conclude cohabitation agreements, which are designed to regulate certain financial aspects of their life together.

    Both the applicants and the government also referred to the main decisions delivered in the most recent years by domestic higher courts on this issue, which basically admitted that same-sex unions must be protected as form of social community under article 2 of Italian Constitution on a case by case basis, yet it is upon the legislature to introduce a form of legal partnership accessible to homosexual couples, and not to the judiciary. Such legal format should not however be marriage, as its constitutional definition must be interpreted in the traditional sense, as the union between a man and a woman.

    Judgment

    The reasoning of the Court focused on the analysis of Article 8 ECHR and specifically on the meaning that the notion of “respect” entails in the present case. This led the Chamber to focus on the discrepancy between social reality and the law, as well as to determine if the State positive obligation to ensure such right is “narrow and precise or broad and indeterminate” (§161).

    Respect for private and family life is not guaranteed in a State like Italy, where still today same-sex couples have no opportunity “to enter into a civil union or registered partnership (in the absence of marriage)” (§164). In a very insightful passage, the Court emphasized the conflict between the social reality of the applicants, who already live their lives as homosexuals committed in a relationship in Italy, and the silence of the law.

    Instruments presented by the Government as adequate solutions are, according to the ECtHR, insufficient. The same Constitutional Court could not but invite the legislature to take action, while ordinary courts hardly have the competence to act more effectively than the higher court in assessing the rights of same-sex couples. Even if they could, the Chamber observed that judicial recognition without a proper legal framework would probably not have lasting legal effects in practice.

    Indeed, the higher courts interpretation generated a state of uncertainty, not only as the suggested case by case approach proved to be successful for certain categories of rights more than others, but also in light of the government constant objection to the applicants’ claims.

    Consequently, the Court found that the Government “has overstepped their margin of appreciation” (§ 185) and concluded that “the absence of a legal framework allowing for recognition and protection of [applicants] relationship violates their rights under Article 8 of the Convention”, also in light of the “movement towards legal recognition”, “which has continued to develop rapidly in Europe since the Court’s judgment in Shalk and Kopf” (§178).

    Nonetheless, the judges remain overly cautious on the right to marry, as they reaffirm that States enjoy a wider margin of appreciation, thus reiterating the same conclusions held in Shalk and Kopf, to finally declare the claim under article 12 ECHR inadmissible.
    Oliari and Others v. Italy: a stepping stone towards full legal recognition of same-sex relationships in Europe | Strasbourg Observers

    It means that eventually all European states that are party to the ECHR, including ones that aren't in the EU, will have to grant some form of legal recognition to same-sex partnerships, although not necessarily same-sex marriage.

    20 out of the 28 EU members already have this recognition or better (same-sex marriage), the other 8 states will have to get their acts together and pass laws to recognise same-sex partnerships.

    Once that's done, the EU member states that don't allow same-sex marriage will have to at least recognise same-sex couples as having legal rights, including the right to family life, with obvious implications for their rights to freedom of movement which this would entail under EU law.

    Therefore, the ECHtR has, in some respects, solved the problems that same-sex couples faced when trying to exercise their freedom of movement rights within the EU.

    If the non-EU citizen same-sex spouse or partner of the citizen of an EU state is denied freedom of movement rights, they can now bring a case founded on the Oliari judgment and their right to family life.
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  6. #46
    Schuhart Schuhart is offline

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    Quote Originally Posted by Des Quirell View Post
    It's perfectly clear in the case of the RoI.

    No EU dictat trumps an Bunreacht.

    The latter has primacy.
    I don't think it matter much in this case, but I think its fair to observe that an EU Directive trumps An Bunreacht. That's why we have referenda on EU treaties - to recognise that we're giving competence to the EU to make laws that bind us.
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  7. #47
    Schuhart Schuhart is offline

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    Quote Originally Posted by sondagefaux View Post
    Any rules that the EU Commission proposes must be in accord with the provisions of the treaties, as interpreted by the ECJ.

    In addition, the EU Commission can only propose changes to the rules - it's up to the European Parliament and the Council to decide if the EU's Commissions proposals are acceptable or not.
    Ah, yeah, we know all that. Its just that (as you say) normally the Commission has exclusive control over what gets on the agenda. This will be an interesting process to follow, just as it will be interesting to see what actions might be concluded on foot of Juncker's proposed discussion on the petition procedure.
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  8. #48
    Ruadh Ruadh is offline
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    Is it that Junker wants to silence the people. Silence those who don't approve of the old rich boys club.
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  9. #49
    sondagefaux sondagefaux is offline
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    Quote Originally Posted by Schuhart View Post
    Ah, yeah, we know all that. Its just that (as you say) normally the Commission has exclusive control over what gets on the agenda. This will be an interesting process to follow, just as it will be interesting to see what actions might be concluded on foot of Juncker's proposed discussion on the petition procedure.
    Which agenda are you talking about? The Commission's agenda is pretty much set by the European Council. The European Council decides the broad strategy and tells the Commission to sort out the finer detail.

    If you're talking about same-sex marriage and other issues that the EU can't legislate to permit or prohibit, why should they be on the EU's agenda?

    Why should the EU waste its time and pay staff to investigate legal and other issues on matters that it can't legislate for?

    Posters here complain that the EU centralises too much power and now they're complaining that it doesn't have control over the legalisation or prohibition of same-sex marriage!
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  10. #50
    MichaelR MichaelR is offline

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    Quote Originally Posted by sondagefaux View Post
    For example, if a woman in France gives birth to a child which is then adopted by a male same-sex couple (let's say for this example that one of them is the biological father), she cannot simply take the child and move to Poland should she decide that the child would be better off with her.

    Even if the child was brought from France to Poland by the biological mother and biological father (after the male same-sex couple split up), the Hague Convention would still apply.
    The first case is a debate between parents (whatever their current living arrangements), but the second is a case, from my POV, of a non-parent encroaching on the right of the child to be with their natural ("biological") parents.

    Croatia had a constitutional referendum on the SSM issue, just like Ireland did. I believe both democratic decisions deserve equal respect. Poland did not have a referendum, but according to Wikipedia it has a constitutional prohibition of SSM.

    If the situation described in your second paragraph arose in one of those countries, I do suspect that the lawyer for the parents would present a constitutional argument. The nation's Constitution has to trump the Hague Convention, which was signed when this particular issue did not exist.

    Basically if the gay male (ex-)partner or spouse (the one staying in France) had been granted custody by the French courts, the Polish courts would be obliged to enforce their decision, and the child would be returned to France to the lawful custody of whomever the French courts had decided should have custody of the child.
    It would be a very interesting case in constitutional law. I suspect it would also garner a high degree of publicity in Eastern Europe and beyond. (Wonder if *that* would be enough to put Croats and Serbs genuinely at peace with each other - or, on the contrsary, to push Serbia away from joining the EU).

    Laws do not necessarily give biological parents extra rights. In most countries, the best interests of the child must be taken into account and courts aren't necessarily obliged to take biological parentage into account when deciding on custody.

    Fleeing to a country which still does take biological parentage into account when deciding on custody isn't necessarily going to work because of the relevant Hague Convention, to which all EU member states are party.
    The need, in some countries like Ireland constitutional, to take the best interest of the child into account does not have to rule out natural parentage. In fact it can be argued that in most cases (that is, in all cases except narrowly defined abuse and abandonment) the best interest of the child is exactly in the presence of both natural parents.

    Some countries like Norway do have a much more statist approach, with the idea that the State decides what the best interest is in all cases; but all EU countries should not be forced to adopt it. I'm not calling for forcing those countries to change, either. I'm all for federalism, democracy and freedom of movement.

    Unless Croatian law permits someone who is recognised as being in a same-sex registered partnership (including someone who is recognised as such in Croatian law after entering into an SSM marriage outside Croatia) to enter into a marriage under Croatian law at the same time as being in a recognised same-sex partnership, the situation would not arise.
    That is a good point. What about Poland, then? No same-sex partnerships, constitutional SSM prohibition. (No Referendum means the prohibition has less popular legitimacy, but it is still constitutional). A person currently in an Irish SSM presents with an opposite-sex partner and demands to be married. Wonder if that would end up in the Supreme Court of Poland.

    (Poland is also a more realistic target for someone leaving Ireland than Croatia. Loads of direct flights, loads of personal connections, they actually have a GAA there).
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