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Family Law in EuropeLecture 1 - Child and family in private international law
Notes
Difficulty with states; you can not make states do something. There is nothing above them,
you can’t enforce any rules. Only ask them to rule something. Only more stronger states.
The problem with citizens is the multiple governance who think something. So what
law do we apply and where do we go to court and what law to apply.
Citizen of Vatican city; illegal to divorce even when marriage is prohibited. Malta is
the last one who made it legal to divorce.
The most progressive state in Europe will set the rules of a theme. You can just
move. In the Netherlands you can divorce whenever you want. But states where marriage is
thigh with social security that they make it more difficult to divorce. If a country gets wealthier
than divorces go up and births go down. It had enormous consequences. The only wealth
that industrial countries had to worry about was workers in a fabric or field.
Finances matter to social norms and family life. How marriage and divorce evolves in
Europe gets discused.
The EU has few substantive laws because there is no delegation. Spain and France, which
are also in the west, are not the most progressive. So be careful with dividing Europe.
The council of Europe and the European Union is not the same. READ THE VERDICT! At
least read the court reasoning. You will understand what the court was trying to do. CJEU is
the member state and it only binds the members of that court. Despite not having erga
omnes effect it still impractis effect. If a similar case comes to court, you will get the same
verdict but you are not bound until the verdict is in.
The European court of human rights differs from that.
Literature
● J. M. Scherpe, European Family Law Volume I, Chapter 1
● J. M. Smits, Advanced Introduction to Private Law,
Edward Elgar, Chapter 5
file:///C:/Users/lotte/Downloads/Advanced_Introduction_to_Private_Law.pdf
● A. Fiorini, ‘Which legal basis for family law?: The way
forward’ (2012), Brussels: European Union; available at:
https://www.europarl.europa.eu/RegData/etudes/note/join/2012/462498/IPOL-
JURI_NT(2012)462498_EN.pdf
, There is some shared competence (most substantive competence goes to domestic
law) between Member States and the Union, this exist in the Area of Freedom,
Security and Justice, where the Union is tasked by the
Treaties to develop judicial cooperation in civil (including family) matters having
crossborder implications.
There are three main forms that the exercise of this competence can take;
1. First, the EU may (in accordance with the provisions of the Treaties) take EU-
wide measures (Art 81 TFEU).
a. Brussel IIbis (Council Regulation (EC) No 2201/2003)
b. Maintenance Refulation (Council Regulation (EC) No 4/2009)
2. Second, the EU may authorize Member States, inter se (among or
between themselves), to establish family law measures (Art 20
TEU). → enhanced cooperation
a. Rome III (Council Regulation (EU) No 1259/2010)
3. Third, it is also be conceivable that this competence might be exercised
through the participation of the EU in international family law instruments
having a broader scope of application than the EU region (Art 216 TFEU)
a. 1996 Hague Child Protection Convention
At the heart of EU action is the position of EU citizens taking advantage of their right
to free movement.
Such aims can optimally be met through the exercise of internal rather than external
competence. Yet the adoption of internal measures in the area of family law has
been much slower than in other civil / commercial matters. This is in part because
family law measures are normally, and by derogation to Art 81(2) TFEU, to be
adopted by special legislative procedure (with unanimity at the Council and
consultation with the European Parliament).
Consideration is therefore given to the extent to which use of the passerelle (Art
81(3) second indent) or recourse to enhanced cooperation might be considered with
a view to facilitating and accelerating the adoption of family law measures.
The current institutional approach is based on the idea that the aims of European family law
as regards EU citizens moving within the EU are primarily met through the adoption of
European Regulations rather than the conclusion of international instruments. This is
because the level of mutual trust within the European area is higher than between Member
States and third States.
Passerelle
According to Art 81 judicial cooperation in civil matters should normally be adopted under
the ordinary legislative procedure (Art 81(2)), except for “measures concerning family law
with cross-border implications” which should be established under a special legislative
procedure with unanimity at the Council and consultation with the European Parliament (Art
81(3)). This specific treatment of family law is justified by the particular sensitivity of such
questions as well as the strength of national traditions and cultures in this field.
Art 81(3) may make it more difficult for a measure to achieve its stated objectives or
indeed the general aims of European family law fully. Especially the unanimously. These
, disadvantages could be partly overcome if use were made of the bridging or “passerelle”
clause relating to family law measures.
Bridging or ‘passerelle’ clauses exist in the Treaties, which enable shifts between legislative
procedures and voting requirements. According to Art 81(3) the Council may unanimously
and after consulting the European Parliament decide that a cross-border family law measure
be adopted by the ordinary legislative procedure. The exact scope of this category
(“measures concerning family law with cross-border implications”) is uncertain and
debatable, as can be exemplified by the different legal bases used to develop the
Maintenance and Succession Regulations.
Bearing in mind that the use of the passerelle is predicated upon a unanimity vote in
Council as well as acceptance by national parliaments, it is clear that the mechanism can
only be engaged if States are satisfied that the content of the measure contemplated will be
acceptable. This will be the case if not only the scope of the instrument is itself
uncontentious but also if the rules contained therein remain neutral. Such preconditions
may not easily be met given the declared aims of EU action in the field of family law.
Dangers of the passerelle
- identification of the ‘aspects’ suitable for the passerelle
- The suitability of the use of the passerelle and its unanimous acceptance will further
depend on the content of the proposed measure
- mostly neutral measures or areas which are already harmonized for example
through the case law of the European Court or an international instrument
Benefits of the passerelle
- Does not weaken the sovereignty of the Member States
The very use of the passerelle requires a unanimous32 vote in Council and approval
by national parliaments, any of which can veto33 recourse to the mechanism (Art
81(3)). If the proposed measure is perceived to threaten a particularly sensitive
Member State policy, that State will have the possibility to prevent the use of the
passerelle either through the opposition of its representative in Council or via its
national parliament
Conclusion
Use of the Art 81(3) passerelle should be made where the scope of the measure and its
proposed content are both uncontentious and “neutral”.
A proposal to resort to the passerelle should always be carefully reasoned and justified.
Enhanced cooperation
The last resort!
Art 20 TEU authorizes enhanced cooperation in accordance with the requirements set out in
Arts 326-334 TFEU. This enables a group of Member States to establish measures between
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