While the European Commission is putting pressure on member states to adopt a regulation facilitating the recognition of parentage for same-sex parents, the French Senate has just voted against the proposed European regulation on the grounds that it does not respect the principle of subsidiarity.
On December 7th, a proposal was presented to the member states—described as “a key action in the EU strategy for equal treatment of LGBTIQ persons.” The aim was to introduce automatic recognition by all member states of parenthood established in a member state, “irrespective of how the child was conceived or born, and irrespective of the child’s family type.” This would be accomplished through a European parenthood certificate, allowing parenthood to be proven in all member states.
A few weeks ago, the Italian government of Giorgia Meloni expressed hostility to this regulation. Now, it is being denounced by the European Affairs Committee of the French Senate which, according to the French Constitution, has a right to review European legislation to check its conformity with the principle of subsidiarity.
Despite the European Commission’s assurance that the regulation will not impact the family law of any particular member state, the reality is quite different. The French Senate reminds the Commission that, as the legislation currently stands, the children concerned already have the right to move and reside freely in the territory of the member states of the European Union, without the need for the “parenthood certificate” the Commission wishes to impose. The justification of a certificate to guarantee freedom of movement is therefore not valid.
The Senate also points out that France is currently opposed to any automatic recognition of birth by surrogacy. The planned certificate would render this specificity of French family law null and void. It is, therefore, a question of standardisation imposed by Europe to the detriment of the states’ margin of manoeuvre.
The Senate adds to its analysis a whole series of additional remarks. It underlines the weakness of the impact studies that are supposed to accompany the regulation and the vagueness of the wording creating conflicts between different-language versions of the document. The French version speaks of ‘filiation,’ while the English version refers to ‘parenthood’—two terms that legally do not cover the same realities and leave room for contradictory interpretations.
Finally, the Senate notes that the text delegates to the Commission the power to define and modify the content of the European parenthood certificate—a delegation that exceeds the possibility offered by the Treaties.
The opinion thus delivered by the French Senators is not a purely formal gesture but it obliges the European institutions to react. Indeed, as the Syndicat de la famille reminds us in a press release, “this reasoned opinion on the disrespect of the principle of subsidiarity is provided for by European law and obliges the Presidents of the European Parliament, the Council, and the Commission to take it into account.”
If a third of the member states join the French challenge on the grounds of non-compliance with the principle of subsidiarity, the draft will have to be re-examined.
