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Summary Family Law in Europe
- Instelling
- Maastricht University (UM)
Summary of Family law in Europe, with almost every chapter of the European Family Law Volume I and III, lectures and tutorials set out.
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Family LawWeek 1
Volume I Chapter 1
The impact of the European Union and the European Court of Justice on European family law
EC gave a definition of family law: is meant to govern above all the legal relationships linked to marriage and
partnerships, filiation and the civil status of persons.
European family law may be considered to comprise various sources emanating from the international,
European and national levels. Some of these main sources:
1. International instruments, adopted by private and public bodies, such as the UN and the Hague
Conference on Private International Law;
2. Primary and secondary Union Law, such as relevant provisions of the Treaties, the Charter of
Fundamental Rights of the EU and a wide variety of Union measures adopted by the Union institutions
and bodies pursuant to such Treaties provisions;
3. Other (extra EU) European Instruments adopted outside the EU but linked thereto such as the
European Convention for the protection of Human Rights and Fundamental Freedoms adopted under
the auspices of the Council of Europe to which all Member States are parties;
4. National rules and principles, stemming from the legal systems of the Member State;
5. Comparative materials, often embodying efforts to formulate common rules and principles
underpinning the laws of the Member States on issues of family law, ranging from works of individual
jurists to those of academic projects, such as the Commission on European Family Law.
European family law may be used to spotlights the measures, initiatives and other activities of the EU as listed
in the second point above.
Scope of European Family Law
Within the EU sphere alone, the breadth of European Family Law is extensive and continues to grow on
account of its intersection with so many areas of EU Law. These includes, for example, social policy, free
movement law, union citizenship, discrimination, fundamental rights, the AFSJ with special regard to the
field of judicial cooperation in civil matters and the discourse on European private law.
Overview of the Union’s Competence in family law
There are no legal bases in the Treaties governing the EU allowing the Union institutions to adopt
measures concerning substantive family law.
In practice, however, this has not prevented the Union from acting in matters of family law pursuant to the
competence that have been conferred on it under the Treaties.
As result the Union has had an impact on family law indirectly in various areas, which has evolved with
successive Treaties amendments.
One of the EU’s first major forays into Family law concerned the field of free movement law , starting
as early as 1968 with the adoption of Regulation 1612/68 = free movement of workers.
The aim of EU was to facilitate this measure, by granting rights to their families, in doing so, it entered
controversial terrain regarding the legitimacy of particular family forms and the favoring of some
individuals over others
The Council adopted the Pregnancy Directives in order to improve the health and safety of pregnant
workers.
The Competence over family law lies primarily with the Member States does not exempt them from
compliance with their obligations under Union law, regardless of whether the particular rule falls
within this reserved area. For instance, a particular national rule may violate the EU rules on Union
citizenship and equal treatment.
Article 81 TFEU
Under article 81 TFEU the Union is tasked with developing judicial cooperation in civil matters, through
measures adopted by the European Parliament and the Council in accordance with the ordinary legislative
procedure aimed at ensuring the mutual recognition and enforcement of judgments the compatibility of
, national rules concerning the conflict of laws and jurisdiction and the elimination of obstacles to the
proper functioning of civil proceedings.
Lid 3: measures concerning family law with cross-border implications require the use of a special
legislative procedure: unanimous voting in the Council and consultation of the European Parliament.
In addition to the Brussels IIBis Regulation two key Union measures concerning Family law have been
adopted so far;
Regulation 4/2009
Regulation 1259/2010 Rome III: lays down rules on the applicable law in divorce and legal
separation
Existence and nature of the Union’s external competence in family law
The Union’s approach to family law appears to be largely dominated by internal rather than external
measures for the obivious reason that finding common ground on sensitive issues such as family law is
even more difficult with third States than it is between Member States
The EU international actions in family law occurs against the background of Article 3(5) TEU, which
task the Union in its relation with the wider word to uphold and promote its values and interests
and to contribute to, among other things, the protection of its citizens and Human Rights in
particular the rights of the child.
Has the Union external competence in family law? If so, what is the nature of the competence?
Article 216(1) TFEU explicitly confirms the general capacity of the Union to conclude international
agreements:
1. Where the treaties so provide
2. Where the conclusion of an agreement is necessary in order to achieve, within the framework
of the Union’s policies.
International agreements in family law
As and when the relevant external competence is found to exist, the Union participation in an international
agreement concerning family law may be used as an alternative to the often difficult process of developing
its own internal legal framework.
Was the case in 2007 Hague Protocol on the law applicable to maintenance Obligation which falls
within the Union’s exclusive competence.
On the same basis, 2007 Hague Convention on the international recovery of child support and other
forms of family maintenance, EU became a party
Sometime international agreements were concluded or too far advanced when the Union acquired the
necessary competence through the Amsterdam Treaty, the EYU has on occasion authorized Member
States to sign or conclude the agreements in question as trustees of the Union
1996 Hague Convention on Jurisdiction, Applicable law, Recognition, Enforcement and
Cooperation.
While possibility for Member States to conclude agreements on family law between themselves is
limited by the principles of Article 3(2) TFEU, a separate but nevertheless related issue is how EU law
deals with bilateral or multilateral conventions in international family law concluded by one or more
of the Member States prior to the establishment of the then Community or to their accession to the
Union. The basic rule is spelled out in Article 351 TFEU.
ECJ has held if a Member States encounters difficulties that make adjustments of an international
agreement impossible, an obligation to denounce that agreement can’t be excluded.
Impact of ECJ on European Family law
Overview of the Union Courts’ Jurisdiction in family law
Generally speaking, although the Union has not yet been conferred explicit or implicit competence
over substantive family law, family law matters may conceivably arise before each of the three Union
courts.
Even so, attention typically centers on the role of the ECJ in European family law. This may be
explained by the fact that the majority of cases that raise issues of family law have been brought
before the ECJ pursuant to its exclusive jurisdiction to deliver preliminary rulings on the
, interpretation and validity of Union law under Article 267 TFEU.
Judicial Interpretation: the ECJ as an ‘incidental’ family court
Largely through its preliminary ruling jurisdiction, the ECJ has dealt with family matters incidentally in
the process of interpreting a wide variety of Union measures.
For fear of interfering too much with national immigration law, the ECJ has outlined over the
years certain limitation to the rights of free movement on which family members could rely. In
Akrich, the Court specified that in order to benefit from the right provided for in Article 10 of
Regulation no 1612/68, a national of a non-member state who is the spouse of a citizen of the
Union must be lawfully resident in a member state when he/she moves to another member
state to which the citizen of the Union is migrating or has migrated.
Nevertheless, the Court added that where the marriage is genuine and where, on the return of
the citizen of the Union to the member state of which he/she is a national, his/her spouse, who is
a national of a non-member state and with whom he/she was living in the member state which
he/she is leaving, is not lawfully resident on the territory of a member state, regard must be had
to respect for family life under Article 8.
As part of the case law on Union citizenship, the ECJ has issued a growing body of judgements
relating to names or civil statues. As it declared in Runevic-Vardyn and Wardyn, as EU law
presently stands, the rules governing the way in which a person’s surname and forename are
entered on certificates of civil statues are matters coming within the competence of the Member
States’. Still, the member states must comply with EU law when exercising that competence,
and in particular with the Treaty provisions on the freedom of every citizen of the Union to
move and reside in the territory of the Member States’. That has been clear since Konstantinidis,
where the Court held that national legislation obliging a Greek national t use in the pursuit of his
occupation a spelling of his name whereby its pronunciation was modified and created the risk
that potential clients may confuse him with other persons was contrary to what is no Article 49
TFEU.
Subsequently, in Gracia Avello, the problem lay in the fact that the Belgian conflict of laws rule
at issue led to an outcome that was in breach of what is now Article 21 TFEU. The Belgian
administrative authorities refused to treat applications for a change of surname made by
Belgian nationals who also held the national of another member state as being based on
‘serious grounds’ solely on the ground that in Belgium children with Belgian nationality assume
their father’s surname in accordance with Belgian Law.
The national measures at issue had the effect of depriving Union citizens of ‘the genuine
enjoyment of the substance of the rights conferred by virtue of that status or of impeding the
exercise of their right of free movement and residence withing the territory of the Member
States’.
The Court’s approach requires the member states to put forward an interest that is vital to its
identity and which complies with fundamental rights in order to prevent the Court from
interpreting Union citizenship in such a way that it requires a person’s name to remain the
same throughout the EU.
The Court’s approach is essentially focused on private autonomy, as illustrated by the
judgements in Garcia Avello. In the former, the fact that persons with dual Belgian and
Spanish nationality elected to rely on their Spanish nationality had a decisive impact on the
determination of their family name. in the latter the Court held that the system of jurisdiction
established by the Brussels IIbis Regulation concerning the dissolution of matrimonial ties was
not intended to preclude the courts of several States from having jurisdiction.
The court readily acknowledged that the Brussels IIbis Regulation might induce spouses to
rush into seizing one of the courts having jurisdiction in order to secure the advantages of the
substantive divorce law applicable under the private international law rules use by the court
seized.
Nevertheless, as the Court held in Grunkin and Paul, in circumstances such as those examined in
Garcia Avello, what mattered was not whether the discrepancy in surnames was the result of
the dual nationality of the persons concerned, but the fact that the discrepancy was liable to
cause serious inconvenience for the Union citizens concerned, which constituted an obstacle to
freedom of movement that could be justified only if it was based on objective considerations
and was proportionate to the legitimate aimed pursued.
, Identity claims were accepted by the Court in Sayn-Wittgenstain and Runevic-Vardyn and Wardyn.
In the former judgement, the Court held that the national identity of Austria as a Republic was a
concrete expression of public policy, whereas in the latter judgement, Lithuania was allowed to
protect its official language and traditions to safeguard its national identity.
The case law on names and civil statues also shows that the fact that two people have different
nationality is not sufficient to conclude that they are in a different situation from the perspective of
the EU principle of non-discrimination, and that classic conflict rules attaching person status or other
family law matters to nationality are therefore ipso facto lawful.
Another area in which the ECJ exerts a substantial impact on family law matters is its interpretation of
Union measures dealing with discrimination and equal treatment.
In Grant the ECJ ruled that what was then Community law ‘as it stood at present’ did not cover
discrimination based on sexual orientation involving a person in a stable relationship with a
person of the same sex, thereby distinguishing its case law involving discrimination on the basis of
gender reassignment.
The Court’s statement in that case was particularly well-timed given that the Amsterdam Treaty
would enter into force the following year, introducing Article 19(1) TFEU, conferring competence
on the union legislature to adopt measures to combat various forms of discrimination including
that based on sexual orientation.
In Maruko the Court received a preliminary ruling request from a German court in a case involving
a same-sex life partner whose request for survivor’s benefits had been rejected on the grounds
that the national rules only extended such entitlements to surviving spouses. In his Opinion,
Advocate General Ruiz-Jarabo Colomer made clear from the outset that ‘it is not for the Court to
define emotional relationships between persons of the same sex, a matter which is the subject of
fierce debate, or to rule on the effects which the legislation of each Member State attributes to the
registration of such partners’.
The ECJ ruled that the Directive precludes national rules under which the surviving life partner
does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even
though, under national law, life partnership places persons of the same sex in a situation
comparable to that spouses so far as concerns that survivor’s benefit.
Judicial law-making: European Federal common law in family law
In addition to its traditional task of interpreting Union law, the ECJ has had a more subtle impact on
family law through its formulation of judge-made rules of Union law, which may be referred to as
European ‘federal common law’. Since it is not possible here to delve into all aspects of the emergence
and development of European ‘federal common law’ for the purposes of this contribution emphasis is
placed on two main points are highly relevant for surveying the Court’s contribution to European
family law:
The definition of European ‘federal common law’ with particular regard to its so-called hard-core:
Many examples of the hard core of European ‘federal common law’ may be found in the field of
family law. In particular there have been several prominent cases involving the ECJ’s elaboration
of Union concepts of “spouse” and “marriage”.
Case law: Reed involved an action brought by Ms. Reed against the Dutch authorities as a
result of their rejection of her application for a residence permit. She was an unmarried
British national who had applied for such a permit on the grounds that she was cohabiting
with another British national for ‘some five years standing’. Article 10 (1)(a) Regulation
1612/68 provided that certain members of the ‘family’ of a Union worker, including the
‘spouse’, have the right to install themselves with a worker who is a national of one
Member State and who is employed in the territory of another Member State. Ms. Reed
wanted to fall within the definition of ‘spouse’ so as to be accorded the rights laid down by
this provision. As the Regulation failed to define this term, the Court was confronted with
the issue as to whether it included unmarried companions or cohabitees. In agreeing in
substance with an argument submitted by the Netherlands Government, the Court found
that ‘any interpretation of a legal term on the basis of social developments must take into
account the situation in (what was then) the whole Community (now Union) not merely in
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