Europeanisation of Family Law

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1 Europeanisation of Family Law I. The increasing importance of comparative law * II. Family law and culture * III. Unification of family law in Europe. A status questionis * IV. Harmonisation and the search for a ius commune * V. Harmonisation through case law *** 1

2 I. Increasing importance of comparative law - Family law internationalizes (migration, mixed marriages), - Advisory activities require knowledge of foreign law (ability to compare different law systems), - Other benefits of comparative law: 1. Each law system can learn from foreign law systems (legislation, case law); 2. Court of Justice and European Court of Human Rights use comparative law as major instrument; 3. Essential instrument for harmonization and unification and 4. Allows the development of a ius commune. 2

3 II. Family law and culture - Family law has become an object of unification and harmonization due to the principles of non-discrimination and of equality adopted by the constitutional courts, the Council of Europe and the ECHR and to common principles with respect of important sociological changes. - Nevertheless, question arises whether family law remains so culturally specific that a harmonization is problematic or undesired? Law is a constituent of our culture, but it primarily is an instrument to regulate human relationships Cherishing law as a symbol of culture leads to intellectual rigidity and isolates us from the benefits of comparative law and of harmonization and unification. 3

4 [Cf. Different opinions about comparative law: modernists (emphasize links) postmodernists (emphasize differences).] - Does the pursuit of harmonization and unification really threaten our culture? No Cultural embedding does not mean that we give up our identity when cultural changes occur. If not, this would not only lead to legal rigidity but also to cultural rigidity. One has to be able to go beyond one s culture (Lévy). Most European legal systems have adopted many reforms of neighboring countries to a degree that much national individuality and culture have been lost. e.g. affiliation law in Switzerland 4

5 - All these reforms have certainly not unified family law in Europe, - but have narrowed the gap between the progressive North and the conservative South e.g. Italy: 1. act on transsexualism, 2. divorce on the principle of irretrievable breakdown > fault, 3. civil effects of Catholic marriages etc. (Cf. Spain even acknowledges civil effects of Islamic marriages). e.g. Spanish regions: registered partnership e.g. Portugal: registered partnership and progressive affiliation law. - even the gap between common law and civil law systems is no longer unbridgeable. e.g. also in common law countries family law has been codified; it has much in common with civil law codifications due to the same social difficulties and growing influence of human rights. 5

6 - It seems that the remaining cultural and regional differences can be overcome to promote an evolution in the same direction (harmonization). - Other impediments are still to overcome: 1. differences in social system objectives, context and functioning of family law is linked to the social system (the access to the labour market and to social security), 2. differences in the degree of regulation does a society want to regulate only fundamental items (common law and Scandinavian systems) or also details (Germany)? 6

7 III. Unification of family law in Europe? - Traditionally: family law has rarely been the object of extensive comparative legal studies and unification has been with little success. - On a region level: unification has been seldom (Benelux: Convention of 29 September 1972 on commorientes, Nordic model: Nordic countries harmonized in the 1920 s certain core aspects of their family law) - On a European level: unification was mainly performed by the Council of Europe and the Commission internationale de l Etat civil. In recent times also by the European Union, mainly in the field of international family law. - On an international level: International Treaty on Civil and Political Rights of 19 December 1966 and the Convention of Children s Rights of 20 November

8 1. The Council of Europe (www.coe.int) - Family law has always been one of its major fields of activity; - operates through its two bodies: the Parliamentary Assembly (consultative and deliberative body), and the Committee of Ministers (decision-making body) - Most important achievement is the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950: Article 8 protects the right to respect for private and family life; Article 12 protects the right to marry and to found a family; 8

9 Article 14: guarantees protection without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Binding for all Member States, But its ranking varies from state to state. In some states it prevails over national law including constitution (the Netherlands), In other states it has a higher rank than international law but the constitution prevails on the ECHR (Poland), In other states it has the rank of a federal law, the constitution prevails on the ECHR (Germany). Nevertheless, in those states where the constitution prevails on the ECHR, it is widely accepted that the constitution has to be interpreted in the light of the ECHR. Conflicts between the ECHR and a constitution or a simple law of a Member State are seldom. 9

10 - Application of the Convention is also guaranteed by the European Court of Human Rights (ECHR) whose judgments are legally binding for the Member States. Even in legal systems where the binding force is controversial, the judgments constitute important precedents (Cf. UK House of Lords 8 March 2006). Through its decisions and judgments it has been a catalyst for harmonization. Influence on affiliation law through the Marckx case; Influence on the relationship between father and child through e.g. Keegan case. But the case law shows that the ECHR is not maintaining its pioneering role: 1. major discriminations in the fields of family law and succession law have been eliminated, so that influence on the approximation of the legal systems is no longer an important issue, 2. the number of Member States has been increasing. Due to their different opinions 10

11 regarding human rights, the Court will in general limit itself to maintaining general accepted standards. 3. during last years no consistence between the judgments of the Court. The Court is refraining from its pioneering role and is using the margin of appreciation when there is no common approach to the problem in the Member States (Fretté case). When there is a common approach or a strong tendency towards such a common approach, the Court leaves no appreciation to the Member State (Goodwin case). - Other Conventions - International Conventions contribute to the Europeanization of family law, but their impact on a real unification is restricted. Now the Council of Europe seeks harmonization through recommendations, resolutions and scientific meetings > Unification by international conventions New major initiatives should not be expected. 11

12 2. The Commission Internationale de l Etat civil (www.ciec1.org) - Main activities have a technical character (compilation of documentation on legislation and case law in matters relating to the status of persons, to the family, the nationality and the drafting of conventions aimed at the harmonization of the provisions on these matters). - Main subject is law of names. 3. The European Union (www.europa.eu.int) - Basically, no competence regarding the unification of family law; - Approximation of laws of Member States is only a task for the European Community when it is required for the functioning of the common market (very rarely- in the field of succession law which has some economic relevance). - Transfer of judicial cooperation in civil matters from the so-called third pillar (cooperation in judicial 12

13 and legal matters) to the first pillar (community law - article 65 EC Treaty) did not push the unification of substantive family law further because article 65 EC Treaty is restricted to international family law only. - But based on EC Regulation Nr. 2201/2003 of 27 November 2003 covering the recognition and enforcement of judgments in matrimonial matters and parental authority (covering visiting rights in all cases), further regulations on the recognition and enforcement and on the applicable law in divorce cases, marital property law and succession law are expected. e.g. Green Paper of 17 July 2006 on the conflict of laws in matrimonial property regimes, including the question of jurisdiction and mutual recognition. - Article 18 II EC Treaty on the citizenship of the Union states that the Council may adopt provisions to facilitate the exercise of the rights of every citizen of the Union to move and reside freely. 13

14 However, the object of this article lays in the elimination of unjustified impediments of free movement but not in the creation of a European private international law (object of article 65 EC Treaty). - Article 308 EC Treaty states that the Council may take appropriate measures if action by the Community should prove to be necessary, in the course of the operation of the common market. Is this article a legal basis for e.g. a European matrimonial regime or a European will? Probably not as it is questionable whether they are really necessary for the completion of the common market. - Nevertheless, the European Union has recently acknowledged the importance of the family 1. Charter of Fundamental rights of 7 December 2000 does not imply a legal basis related to family law but existing rules can be interpreted in a broader sense citizens are seen as persons with their own rights, no longer as consumers only; 14

15 2. Presidency conclusions of the Laeken Council of December 2001 Continuation of problem solving of the differences between legal systems, harmonization of family law were named as an example; 3. European Constitution agreed upon at the Government Conference of 18 June 2004 which still needs to be ratified by the Member States important for international family law. The new article III-170 of the European Constitution, that replaces article 65 EC Treaty, no longer requires the condition that the action taken by the Council should be proven necessary in the operation of the common market. A true unified conflict law (international family law) can be developed in two stages: 1) expansion of Brussels I to marital and child affairs, limited to the unification of competence, recognition and enforcement. Brussel III will expand Brussels I to marital property law and succession law. 2) expansion to an international divorce law. 15

16 - The European Court of Justice has served as an impetus to harmonization of law by attributing certain aspects of family law to the freedom of movement: e.g. Konstantinidis case (name), Dafeki case (personal status), P. case (transsexualism), Garcia Avello case (name). These decisions reduce discrimination and administrative impediments, but are no great breakthrough in the harmonization in the field of family law e.g. Grant case (homosexual partners) and case of D. and the Kingdom of Sweden v. Council of the European Union (registered partnership) where the Court left the initiative to the Community legislator. 4. Conclusion: Harmonisation Council of Europe and even the Court of Human Rights will play a minor role in future. It is clear that the European Union will have a more important role. 16

17 Is this positive? European Community which emphasizes economic views, free movement, realization of an internal market is perhaps not the ideal organization to promote harmonization and unification of family law. There is a risk that family law will be downgraded to an auxiliary science of economic law, only serving to realize the economic goals of the Community. - The legislative activities and the case law show that only fragmentary work has been done. The concepts, the affected rights and the interest of family, marriage and domestic partnerships are not well defined. Conclusion: an institutional unification of substantive family law by treaties or regulations is currently not advisable. First a long phase of more spontaneous harmonization is necessary. This can only be reached through education and the evolution of legal sciences. 17

18 IV. Harmonization and the search for a ius commune. - Harmonization operates through evolution, reception and informal cooperation. - Last 20 years a contribution to spontaneous harmonization has been given by legal writers working on their own or in groups, promoting the development of principles, especially in contract law, based on the common core of the legal systems = the development of a ius commune. - In the search for a ius commune familiae the Commission on European Family Law was founded in 2001 (http://www2.law.uu.nl/priv/cefl/) (Professor Pintens is a Member). Two groups: the Organizing Committee (OC) and the Expert Group (EG). Working method: drafting of a set of principles (method of the American Restatements, if there is no 18

19 common core, better lawapproach) Questionnaire prepared by the OC, discussion in the OC and presented to the EG. not detailed law codes. Fields of family law: divorce law (grounds for divorce and maintenance between spouses), parental responsibility Achievements: in 2004 the Commission presented the first set of principles regarding divorce and maintenance between former spouses). 19

20 V. Harmonization through case law - Important role for harmonization; - Principles of equality and non-discrimination have let to a comparative analysis in case law of national and supra national courts, especially the ECHR; - In studying the case law one becomes familiar with foreign law, the differences and the similarities between the different legal systems. *** 20

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