European Family Law (PIL)
1. Notion of European international family law
European international family law forms a part of private international law (PIL) and refers to the EU regulation of family law. Substantive family law in the European Union is not unified; rather, substantive law varies throughout the Member States. Private international law on the other hand has, for some time, become increasingly europeanized. More and more uniform European procedural rules and choice of law rules have been introduced. This development initially started in family law with the aim of creating a unified European judicial arena on a procedural level, but has in the meantime been extended to the creation of choice of law rules. Family law considerably affects the personal and economic interests of individuals. Consequently, the increasing number of cross-border and multinational family relationships necessitates a unification of conflicts rules affecting family law and —though this is debated—may eventually necessitate unification of substantive family law in the EU. A certain degree of legal certainty in the interest of the citizens of the Union in international family law can, for the time being, only be achieved by a harmonization of conflict law rules and the rules on jurisdiction, mutual recognition and enforcement.
The development of an international European family law is time-consuming and faces specific difficulties. Peculiarities in respect of legislative competence must be accounted for, and the national, European and international spheres have to be coordinated. The content of European regulations has to be developed in view of divergent national concepts and traditions. Some of the proposals originate from the European Commission, but they also come from the Groupe Européen de Droit International Privé (GEDIP).
Family law in this sense encompasses core areas of law like matrimonial and child law (marriage; family). The divergent positions in the Union in respect of non-marital and same-sex relationships (cohabitation; same-sex relationships) lead, however, to a few grey areas. For example, the Rome I Regulation (Reg 593/ 2008) excludes obligations arising out of ‘family relationships’ or out of ‘relationships deemed by the law applicable to such relationships to have comparable effects’ (Art 1(2)(b)). According to the recitals, family relationships should cover parentage, marriage, affinity and collateral relatives. For relationships ‘having comparable effects’ to marriage and other family relationships, there is no Union law definition, and reference is made only to the law of the Member State in which the court is situated, ie the lex fori. However, a 2011 Communication from the Commission to the European Parliament and the European Council, the Commission tries to bring legal clarity to property rights for international couples. It is accompanied by two proposals for Council regulations: one on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and a second on the property consequences of registered partnerships. These proposals aim to provide a more comprehensive and modern answer.
2. European competence
A Union law regulation of international family law presupposes a valid legal basis in the EU Treaties Legislative competence for a comprehensive uniform European substantive family law does not yet exist. Rather, the European Union is restricted to the regulation of cross-border, family law related cases. The Treaty of Amsterdam introduced a competence for a ‘gradual creation of an area of freedom, security and justice’ (Art 73m), which encompassed measures in the area of judicial cooperation in civil matters having cross-border implications according to Art 81 TFEU/65 EC (Art 70 TFEU/61(c) EC). This concerns, for example, improvement and simplification of recognition and enforcement of decisions in civil and commercial cases, including decisions in extra-judicial cases (Art 81(2)(a) TFEU/65(a) EC) as well as ‘the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction’ (Art 81(2)(c) TFEU/65(b) EC). Projects in family law as well are covered by this. Meanwhile, it is the prevailing view that not only rules on procedure are covered, but that a coordination of conflict rules by unification can also take place.
Like other European conflict rules, the conflict rules in family law are also universally applicable to third countries. In addition, a Union law regulation of international family law generally conforms to the principles of subsidiarity and proportionality found in Union law (see Art 5(3), (4) TEU, not in EU). This depends, however, on the content of the proposed legal instrument.
Under the Treaty on the Functioning of the European Union (TFEU), there is a Chapter 3 on ‘Judicial cooperation in civil matters’. The former Art 65 EC on judicial cooperation in civil matters can now be found—with an almost complete abolition of the internal market requirement—in Art 81(1) TFEU. In principle, the ordinary legislative procedure of the European Parliament and Council is applicable (Art 81(2) TFEU). However, there is a special procedure for measures concerning family law with cross-border implications. These measures must be decided by the European Council using the special legislative procedure (Art 81(3) TFEU). The Council has to act unanimously after consulting the European Parliament (Art 81(3)1 TFEU). The attribution of the above-mentioned proposals to such legislative procedures generally poses no problems. Belonging to family law in the sense of Art 81 TFEU are, for example, matrimonial matters and parental responsibility.
According to a sub-exception of the exception in Art 81(3) TFEU, the Council may, on a proposal from the Commission, adopt a decision determining those aspects of family law with cross-border implications which may then be the subject of acts adoptable by ordinary legislative procedure (Art 81(3)2 TFEU). The Council must act unanimously after consulting the European Parliament (Art 81(3)2 TFEU). Thus the national parliaments also play a role for this bridging clause in respect of family law. The proposal must be notified to them (Art 81(3)3 TFEU). If a national parliament expresses its opposition within six months of the date of such notification, the decision cannot be adopted and there is no bridging (Art 81(3)3 TFEU). The veto right of the national parliaments has no further influence, however. In the absence of opposition, the Council may adopt the decision.
Before the Treaty of Lisbon there was a similar sub-exception. According to Art 67(2) second dash EC, Member States could, after consulting the European Parliament, unanimously decide that the co-decision procedure of Art 251 EC, ie one taken with a qualified majority and approval of the European Parliament, be exceptionally applied to a proposal for a regulation in family law matters. The European Commission and the Council have attempted such an application of the passerelle between the unanimity and co-decision procedures for maintenance law only once, but without success
3. Approaches in private international law
The development of a European international family law faces the same problems as other European conflict rules. The impact of European primary legislation, particularly the fundamental freedoms, must not be forgotten. Increasingly, respect for the free movement of persons (Art 21 TFEU) resulting from Union citizenship (Art 20 TFEU) is of particular significance for choice of law questions and connecting factors.
As far as classical conflict rules are to be created, a specific general part of European PIL is lacking, so that a uniform attitude to, for example, public policy or renvoi still has to be developed. In this regard, it can also be assumed that public policy will only play a small role. Considering that a choice of law and the habitual residence of the parties are widely advocated as appropriate connecting factors, the use of renvoi will probably not succeed.
The development of a consistent system of connections for the conflict rules is difficult. In order to conform to the factual connections of individuals with their respective environments—but also for practical reasons—habitual residence is currently the most important connecting factor. Proposals for an objective connection in European international family law generally take this as a starting point. Especially for spouses of different nationality, the law of their (last) common habitual residence is a governing consideration.
It is true that nationality is, to a large extent, still a decisive connecting factor in national conflict rules. And, as yet, the European Court of Justice (ECJ) has not challenged the nationality principle as such. However, for European conflict rules nationality is unsuited as a primary connecting factor not only because of the need to avoid discrimination on grounds of nationality (discrimination (general)), but also in view of the growing mobility in the internal market. Nevertheless, it represents a close connection and can, particularly in cases of a common nationality of the parties, serve as a connecting factor.
Additionally, an extension of party autonomy with a restricted choice of law by the parties is developing in family law matters and also in respect of personal status. For example, the Rome III Regulation on divorce provides for such a choice of the applicable law by the parties. In this way, individuals can themselves determine the legal system to which they have a close connection.
The Rome III Regulation illustrates the difficulties in developing a consistent approach. According to this instrument, the law of the forum applies where the law applicable pursuant to the general rules makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex (Art 10 Reg 1259/2010). At the same time, Art 13 Reg 1259/2010 makes allowances for differences in national law. The courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings are not obliged to pronounce a divorce by virtue of the application of this Regulation.
The individual connections have to be suitable, eg in child law they have to serve the best interests of the child. At the procedural level, the proposals generally aim at a promotion of cooperation among the competent authorities.
Especially with regard to the right to a name (law of names), it is discussed if, instead of applying a specific legal order, ie a proper choice of law approach, it would be possible to simply recognize the respective foreign regulation of names. Such a recognition rule would then make a separate connection of the single issue in a conflict of law rule superfluous. Such recognition could relate to acts of public authorities, the creation of a legal status or, in general, also to legal situations.
This debate was spurred in part by the case of the Spaniard Garcia Avello, who lived in Belgium with his Belgian wife, I. Weber, and his two Belgian-Spanish children. According to Belgian law the children received the name of the father—Garcia Avello—as their surname; a change of name was refused. However, Spanish custom is for children to take the first surname of each of their parents, placing their father’s first and their mother’s second. According to the ECJ’s view, Art 18 TFEU/12 EC (discrimination (general)) and Art 20 TFEU/17 EC (Union citizenship) forbade the rejection of a change of name application for children with dual nationality where it is sought that the child bear the name which they would have had according to the law and the tradition of the second Member State (here: ‘Garcia Weber’ per Spanish law and custom). As a result, it is considered discriminatory if the name cannot be changed according to the national law of the person (ECJ Case C-148/02 – Garcia Avello  ECR I-11613).
The ECJ further followed this line of reasoning in a case in which a child of German nationality—born and primarily living in Denmark—was denied a dual surname by German authorities. Such a name was permissible under Danish law, but inadmissible under German law (ECJ Case C-353/06 – Grunkin-Paul  ECR I-7639). It is true that the concept of nationality as such was not disapproved. The decisive argument of the court was, however, the need to respect the free movement of EU citizens according to Art 21 TFEU/18 EC. EU citizens must not be discriminated against when they make use of their freedom to move and reside freely in another Member State. Being required to bear a different name in the other Member State is a serious and disproportionate inconvenience. The German authorities therefore were not allowed, on application of German law, to refuse to recognize the surname of a child determined and registered in another Member State in which the child was born and had been resident since birth.
4. European regulations
In the past, European international family law has been regulated solely by procedural laws. However, regulations encompassing substantive law in addition to procedural rules are increasingly being enacted. Procedure in international maintenance matters is covered by the Brussels I Regulation (Reg 44/2001). Moreover, the Brussels IIbis Regulation (Reg 2201/2003) on the jurisdiction and the recognition and enforcement of foreign decisions in matrimonial matters and in proceedings concerning parental responsibility is in force.
The enactment of the Rome III Regulation (Reg 1259/2010) on the applicable law to divorce (2010) was only a limited success. Originally it was planned to insert provisions concerning the applicable law in the Brussels IIbis Regulation. However, such a regulation failed due to the resistance of some Member States, particularly Sweden, where obtaining an ‘easy’ divorce is seen as a human right (human rights and fundamental rights (ChFR and ECHR)). To overcome this impasse, in March 2010, 10 Member States agreed to proceed, making use for the first time of the ‘enhanced cooperation’ mechanism contained in the EU treaties. In cases of a common residence connection combined with a residence abroad, the provisions of the new regulation can lead to the application of a foreign law under which divorce is not at all possible or, when so, only in a restricted manner.
Meanwhile, also an independent regulation on international maintenance law (maintenance) has been developed. The Maintenance Regulation concerns international law of civil procedure, particularly jurisdiction, recognition of judgments and cooperation of national authorities. Initially special European conflict of law rules were also planned. However, according to the final version of the Maintenance Regulation, the applicable law on maintenance obligations is determined by the Member States, who must act consistently with the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (Art 15 Reg 4/2009). In this way a further fragmentation of international maintenance law has been avoided.
Moreover, European conflict rules determining the applicable matrimonial property law are to be developed. Hitherto, there is only a proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and another regarding the property consequences of registered partnerships (these proposals also dating from March 2011).
5. International conventions
The ECJ has developed an external competence of the EU which flows from the internal competence of the Union: the Union can enter into external (international) agreements if it has already made use of its internal competences, adopts measures with the aim of implementation of Union policies, or if this is necessary for an achievement of a goal of the EU (ECJ Case 22/70 – Commission/Council  ECR 263). Therefore, there is an external competence of the Union if legal instruments are issued which are based specifically on Art 81 TFEU/65 EC.
The external competence of the EU is of an exclusive nature, insofar as an international agreement affects intra-Union provisions or intervenes in their scope. Then it is a matter for the Union to enter into external agreements with third countries or international organizations. Such an agreement may totally or only partially fall within the exclusive external competence of the EU. In the latter case it is a shared (mixed) competence between Union and Member States. Depending on the matter, it may only be a concurrent competence which also exists.
The ECJ also holds that where common legal norms have been enacted, the Member States themselves are neither individually nor collectively entitled to enter into engagements with third countries which interfere with these norms. In such cases, the European Union has an exclusive competence for the conclusion of international treaties. Accordingly, the EU has to act externally in a uniform way. However, there still exists a need for bilateral agreements of Member States with third countries. Therefore, there is Council Regulation of 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations.
Since 3 April 2007 the European Union is, as a regional organization, a member of the Hague Conference on PIL. The European Union has deposited a declaration of competence specifying the matters in respect of which competence has been transferred to it by its Member States. This concerns measures in the field of judicial cooperation in civil matters having cross-border implications especially insofar as necessary for the proper functioning of the European internal market (Art 81 TFEU/61(c) and 65 EC). In 2007, the European Union signed the Hague Maintenance Convention of 2007.
For the application between Member States, the procedural Brussels IIbis Regulation in principle takes precedence over the international conventions that may be in play. However, this regulation takes precedence only over matters covered by the regulation. Substantive conflict rules are therefore generally not affected. It is intended that the existing conventions, particularly in respect of child abduction, are not totally set aside by the regulation, but are instead supplemented by additional European rules of a further scope (see Art 11 Brussels IIbis Regulation).
Specific problems arise with regard to the ratification of the already-existing Hague Conventions. The UK-Spanish dispute regarding the application of the Hague Child Protection Convention (child protection) in Gibraltar has blocked the entry into force of the Convention for most senior EU Member States for a considerable time. The Convention deals with matters which are also covered by the Brussels IIbis Regulation and thus further reduces the competence of the Member States. The Council has in the meantime authorized the Member States to ratify the Convention.
Where the European Union and/or its Member States become contracting parties to a new Hague Convention, the question arises as to what the relationship should be between EU law and international conventions since they relate to the same matter. The anticipated legal uncertainty which will ensue in practice as a result of duplicate regulation demands the determination of a rule on precedence. In the Hague Conventions there are already precautionary provisions. According to Art 51(4) Hague Maintenance Convention of 2007, the Convention shall not affect the intra-Union application of instruments of a Regional Economic Integration Organization for parties of the Convention. According to the Maintenance Regulation, its provisions shall, in relations between Member States, take precedence over the conventions and agreements which concern matters governed by this Regulation and to which Member States are party (Art 69(2)).
The Hague Convention on Protection of Adults of 2000 (protection of adults), in force from 1 January 2009, is covered only by the currently unexercised, concurrent competence of the EU and could therefore be ratified by the Member States—among others, Germany—without problem.
6. International law of civil procedure
Rules governing adjudicatory jurisdiction on maintenance matters can be found in the aforementioned Brussels I Regulation; maintenance falls under civil and commercial matters. For divorce (marriage) and parental responsibility, jurisdiction is laid down in the Brussels IIbis Regulation, according to which the habitual residence of the parties is ultimately decisive.
Uniform rules for the recognition and enforcement of foreign judgments in matters relating to maintenance obligations are laid down in the Brussels I Regulation, for matrimonial matters and parental responsibility in the Brussels IIbis Regulation. Special provisions are found in the Brussels IIbis Regulation in respect of international child abduction. Alongside the Hague Convention on Child Abduction of 1980, these rules try to secure the prompt return of wrongfully removed or retained children.
Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225; Dieter Henrich, ‘Anerkennung statt IPR: Eine Grundsatzfrage’  IPRax 422; Dagmar Coester-Waltjen, ‘Anerkennung im Internationalen Personen-, Familien- und Erbrecht und das Europäische Kollisionsrecht’  IPRax 392; Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums’ (2006) 70 RabelsZ 651; Alegría Borrás, ‘Prinzipien des Internationalen Familienrechts’ in Gerte Reichelt (ed), Europäisches Gemeinschaftsrecht und IPR (2007) 55; Johan Meeusen, Marta Pertegás, Gert Straetmans and Frederik Swennen (eds), International Family Law for the European Union (2007); Alberto Malatesta, Stefania Bariatti and Fausto Pocar (eds), The External Dimension of EC Private International Law in Family and Succession Matters (2008); Dieter Martiny, ‘Auf dem Weg zu einem europäischen Internationalen Ehegüterrecht’ in Festschrift Jan Kropholler (2008) 373; Dieter Martiny, ‘Die Entwicklung des Europäischen Internationalen Familienrechts: ein juristischer Hürdenlauf’  Familie, Partnerschaft, Recht 187; Paul R Beaumont, ‘International Family Law in Europe —The Maintenance Project, the Hague Conference and the EC’ (2009) 73 RabelsZ 509; Bruno Nascimbene, ‘Jurisdiction and Applicable Law in Matrimonial Matters: Rome III Regulation?’ The European legal forum section 1, 2009, 1 ff; Rolf Wagner, ‘Konturen eines Gemeinschaftsinstruments zum internationalen Güterrecht unter besonderer Berücksichtigung des Green Paper der Europäischen Kommission’  FamRZ 269; Máire Ní Shúilleabháin, ‘Ten years of european family law: retrospective reflections from a common law perspective’ 59 (2010) ICLQ 1021.