Planning the Future of Cross Border Families

A Path Through Coordination

Ilaria Viarengo, Francesca C Villata, Ilaria Viarengo, Francesca C Villata

• Editorial: Hart Publishing
• Año: 2020
• ISBN:
  9781509919871
• Edición: 1
• Categoría: Droit
• Categoría: Conflit de lois

This book is built upon the outcomes of the EUFam's Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes.
The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law ( lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

PART I

Cross-Border Families: Social and Cultural Issues

1

Unification of Private International Law in Family Matters in the European Union: Cultural Issues

CHRISTIAN KOHLER

I.Introduction: Culture and Family Law in Europe

Law and culture are Siamese twins, inextricably linked to each other. Law forms part of the rules governing social life and is itself shaped by society. It is the expression of the ‘value systems, traditions and beliefs’ which characterise a social group, a society, a nation.¹ This is true in particular for the links between culture and family law. Indeed, the legal regime of interpersonal relations within the group of individuals which forms a ‘family’ has always reflected the traditions and beliefs of a given society which the legislator takes as a basis for its action. As there is a great number of societies one is faced with a plurality, and diversity, of cultures. For the ethnologist:

Une constatation s’impose: la diversité des cultures humaines est, en fait dans le présent, en fait et aussi en droit dans le passé, beaucoup plus grande et plus riche que tout ce que nous sommes destinés à en connaître jamais.²

To the plurality and diversity of cultures corresponds a plurality and diversity of family concepts and family laws. In the words of a British judge:

[T]here have been enormous changes in the social and religious life of our country. The fact is that we live in a secular and pluralistic society. But we also live in a multicultural society of many faiths. One of the paradoxes of our lives is that we live in a society which is at one and the same time becoming both increasingly secular but also increasingly diverse in religious affiliation. Our society includes men and women from every corner of the globe and of every creed and colour under the sun … The result of all this is that in our multicultural and pluralistic society the family takes many forms. Indeed, in contemporary Britain the family takes an almost infinite variety of forms … The law, as it seems to me, must adapt to these realities.³

This analysis applies of course not only to Britain, but also to other European states and beyond.⁴ Many of these states have in fact reacted to these developments by adapting their substantive law of family relations. Additional measures have been adopted in recent years by European legislators following the ongoing inflow of refugees, asylum-seekers, and other migrants from the Middle East and Africa, eg, by amending the rules on marriage in order to cope with forced marriages and/or child marriages.⁵ At the same time, despite the plurality and diversity of substantive family laws, discussions about the existence of a common European family law have led to a number of scholarly initiatives and have generated proposals on common principles of substantive family law.⁶ However, although isolated notions belonging to a ‘European’ family law tend to appear following the case law of the Court of Justice of the European Union (CJEU), there is to date no harmonisation of substantive family law in the European Union.

The situation is different as far as the conflict of laws, or private international law, in family matters is concerned. On the one hand, new rules on jurisdiction, choice-of-law, and the recognition of foreign judgments have been enacted in that field by a number of European states over the past decades, and, more recently, ad hoc rules have been adopted in the context of the new legislation on marriage just mentioned.⁷ On the other hand, since the Treaty of Amsterdam, the European Union has developed its own policy of private international law which has become, under the Treaty of Lisbon, a component of the judicial cooperation in civil matters within the area of freedom, security, and justice set up by the Treaties.⁸ In the field of family conflicts, a number of Regulations have been adopted since the year 2000, gradually superseding national law in that field. They concern the jurisdiction of courts and the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility (now the Brussels IIa Regulation) as well as in matters of maintenance (Maintenance Regulation). In addition, uniform choice-of-law rules have been adopted in matters of divorce and legal separation (the Rome III Regulation); for maintenance obligations, Article 15 of Maintenance Regulation refers to the 2007 Hague Maintenance Protocol. In 2016, Matrimonial Property Regimes Regulation and Regulation on the Property Consequences of Registered Partnerships have been adopted. Last but not least, it should be mentioned that in the related field of succession law, uniform conflict rules have been adopted by the Succession Regulation.

It is the purpose of this contribution to look into the cultural issues which appear in the process of unification of family conflicts rules in the EU. Is that a worthwhile undertaking? The question may be asked, because the links between culture and international family law are less obvious than the ties between culture and substantive family law that have been referred to above. It is true that private international law is sometimes perceived as a predominantly technical tool to regulate the activities of courts and to determine the scope of application of substantive laws in cross-border situations. That perception neglects the fact, however, that the basic choices the legislator has to make in that field are guided by the approach of the state concerned towards foreign law and foreign courts. Is there trust in the administration of law by foreign courts? Is foreign law considered as being in principle equivalent to the law of the forum? Are foreign judgments easily recognised? Where these questions are answered in the affirmative the approach of the conflicts legislator will differ from the approach based on a bias for the courts and the law of the forum. For the states of Continental Europe the first approach may be said to be predominant, and that is also the basic approach of the European legislator. This is an important choice. Where legal systems are equivalent, their diversity is taken seriously, and that implies a relativisation of the position of the forum. In the realm of family law, as will be seen, the cultural relativity behind the recognition of the equivalence of legal systems⁹ may at times be difficult to endure and lead to unilateral reactions of the forum.

Whatever position the forum takes as to the equivalence of foreign law and the law of the forum, the choices made by the legislator of conflict rules are frequently, and, some would say, inevitably, guided by the same policies which underpin the substantive rules in the field concerned. This holds particularly true in family law:

To a certain extent, international family law always reflects the state of internal substantive family law. The stricter the rules of internal law are, the stricter conflict of law rules tend to be. The values of the internal legal order have to be protected against the application of foreign law and the recognition of foreign decisions.¹⁰

The correctness of that statement will be tested in the following paragraphs. It will be seen, first, that cultural impulses appear already in the provisions of primary law which define the competences of the EU for the unification of the law of family conflicts. Second, the abovementioned Regulations will be looked at in order to see how far cultural elements have influenced some key features of the uniform rules. This concerns, on the one hand, the choices for the connecting factors of the conflict rules and, on the other, the exceptions to the normally applicable rules. Indeed, it is in the latter field that cultural issues, amounting at times to a clash of cultures, will be detected. Additional challenges affecting the diversity of legal cultures within the Union will be addressed at the end.

II.International Family Law in the EU Treaties: National Identity and Cultural Diversity

A.Legal Culture and (International) Family Law as Part of the National Identity of Member States

In the EU Treaties, the basic tension between integration and national identity appears in various contexts. Article 4(2) TEU stipulates that the Union shall respect the national identities of the Member States, ‘inherent in their fundamental structures, political and constitutional’. That includes the basic principles and typical features of the Member States’ legal systems, ie their legal culture.¹¹ There can be no doubt that this aspect of a nation’s culture is included in the ‘rich cultural and linguistic diversity’ which the Union is to respect according to Article 3(3) TEU.¹² In the present context, the diversity of legal cultures is addressed in Article 67(1) TFEU which provides that the Union shall constitute an area of freedom, security, and justice with respect for fundamental rights ‘and the different legal systems and traditions of the Member States’.

Bearing that in mind, it is no surprise that the close ties between international family law and national legal culture of the individual Member States have led to a kind of exception culturelle within the system of competences of the EU. The competence to adopt measures in civil matters ‘having cross-border implications’, conferred to the European Community (as it then was) by the Treaty of Amsterdam and defined in Article 65 EC, had been understood avant la lettre as including matters of family law. The Brussels II Regulation was among the first instruments adopted under the new regime. However, at that time the intergovernmental elements of the new competence made sure that no measure could be adopted against the will of a single Member State: according to Article 67 EC the Council acted unanimously on a proposal from the Commission ‘or on the initiative of a Member State’, the European Parliament being merely consulted. When the Treaty of Nice amended that rule by making the co-decision procedure applicable to measures provided for in Article 65 EC, that amendment did not apply ‘to aspects relating to family law’.¹³ Thus, the first mention of family law in the Treaty was coupled with the continuing rule of unanimity. The Lisbon Treaty maintained that rule and gave it its actual form: Article 81(3) TFEU provides that measures concerning family law with cross-border implications are adopted with a special legislative procedure where the Council acts unanimously after consulting the European Parliament.¹⁴ It is true that the Council, on a proposal by the Commission, may adopt a decision determining aspects of family law which may be subject to acts adopted by the ordinary legislative procedure (where the act is adopted jointly by the European Parliament and the Council, the latter acting by a qualified majority). However, the Commission’s proposal for such a passerelle decision must be sent to the national Parliaments, and the decision cannot be adopted if a national Parliament is opposed to it.¹⁵ Obviously, such a right of veto is an alien element in the system of competences established by the Treaties.¹⁶ It shows how strongly international family law is linked to the core of national legal systems: it belongs, like substantive family law, to the national identity of the Member States that the Union is bound to respect. In its judgment, which eventually upheld the constitutionality of the German act allowing the ratification of the Lisbon Treaty, the German Bundesverfassungsgericht insisted that in view of the consequences of an Article 81(3) passerelle decision a positive vote of the German representative in the Council required an act of the German Parliament.¹⁷ The Court went even further by stating that a transfer of competences in matters of substantive family law was strictly excluded under the German constitution as this part of the law belonged to the cultural domain which had to remain under the democratic self-determination and responsibility of the national legislator.¹⁸

The finding that (international) family law is strongly linked to the core of national legal systems may be further illustrated by the position defended by several Member States in the Coman case before the CJEU.¹⁹ That case concerned the right of residence in Romania of a third-country national who had concluded a same-sex marriage with a Romanian national in Belgium. The Romanian authorities had refused to recognise the marriage for the purpose of the derived right of residence of the third-country spouse. Before the European Court a number of governments supported the Romanian position by referring to the fundamental importance of the institution of marriage and their intention to maintain a conception of that institution as a union between a man and a woman, protected in some Member States by laws having constitutional status. The Latvian government stated that, even where a refusal to recognise a same-sex marriage concluded in another Member State constituted a restriction of Article 21 TFEU, such a restriction was justified on grounds of public policy and national identity, as referred to in Article 4(2) TEU. Responding to that argument, the Court found that:

the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and … falls within the competence of the Member States. Such recognition does not require...