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The Legal Basis For Family Law

The Legal Basis For Family Law. Interparliamentary committee meeting ‘the stockholm programme: state of play regarding police and judicial cooperation in civil and criminal matters ’ Brussels 20.6.2013 Aude fiorinI dundee university law school. Introduction.

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The Legal Basis For Family Law

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  1. The Legal Basis For Family Law

    Interparliamentarycommittee meeting ‘the stockholm programme: state of playregarding police and judicialcooperation in civil and criminalmatters’ Brussels 20.6.2013 Aude fiorinI dundee universitylawschool
  2. Introduction The development of EU familylawrules has been spectacular: 2000: No EuropeanFamily Law rule in force, except the maintenance obligation rules in Reg (EC) 44/2001. Today: broad portfolio of rules, with more underdevelopment. However, harmonisedfamilylawrules have developed more slowly and withgreaterdifficultythanother aspects of civil lawcooperation.
  3. Adopting New European Family Law RulesOverview Principle: Adoption of EU familylawmeasuresrequires a SPECIALLEGISLATIVE PROCEDURE (Art 81(3) first indent TFEU) Familylawmeasuresapply EU-wide ,or, To a selection of MS as a result of enhancedcooperation. Enhancedcooperationmeasuresmaybeconsidered: Where the adoption of EU widemeasurescannotbeachievedwithin a reasonableperiod. Theireffectlimited to States whichchoose to participate. Exception: Use of passerellesmay lead to the applicability of the ORDINARY LEGISLATIVE PROCEDURE Under 81(3) second & thirdindents TFEU (EU-widemeasures) Under Art 333(2) TFEU (Enhancedcooperationmeasures)
  4. SPECIAL LEGISLATIVE PROCEDURE Principle: Consultationprocedurewithunanimity vote in Council applies to familylawinstead of the ordinary (co-decision) procedure Justification forspecialtreatment: Sensitivity of familylaw; Strength of national traditions and cultures. This specialtreatmentisparadoxical: Familylawis an area important to Europeancitizens (& Europeanrulesmaybeparticularly important to thosemovingacrossborders) yettheirrepresentativescannotbefullyengagedwith the legislativeprocedure yet the requirement of unanimity in Council impairs the development of EU familylaw: Possibility for individual States to block or threaten to block measures to protect national interest/policy; Possible adoption at the price of unsatisfactory compromises whichmaydilute or contravene the statedpolicy objectives of the measure.
  5. Should the use of a passerelle be promoted? (1) The ordinarylegislative (i.e. co-decision) procedureimpliesgreaterinterinstitutional dialogue and QMV voting in Council. Q1. Shouldrecourseto the passerelle beresistedin principle as itresults in a reduction of the role of Member States in a sensitive and culturallyinfluencedarea? Art 67 (1) TFEU: « the Union constitutes an AFSJ with respect for fundamentalrights and the differentlegalsystems and traditions of the MemberStates » The passerelle’sweakening of Member States’ sovereigntyshould not beexaggerated. States are able to ‘protect’ areas of important domesticpolicies as use of the passerelle requires: Unanimous vote in Council; Approval by National Parliaments (not under Art 333(2)).
  6. Should the use of a passerelle be promoted? (2) Q2. Are any aspects of familylawunsuitable for use of the ordinaryprocedure? Answerdependsless on the area of familylawconcernedthan on the content of the proposedmeasure: Mixed areas of law (at the interface of familylaw and the law of obligations or propertylaw) are not per se suitable. Mixed areas are not necessarilyless sensitive thancore areas of familylaw. Suitability (and potential for unanimousacceptance) islinked to the content. Use of the ordinaryprocedureshouldbefacilitatedwhere: Measurebased on existing partial harmonisation (though ECJ/CJEU case law or international instrument); Measureembodyingcoreprinciplesaccepted by or acceptable to all Member States (such as neutral PIL principles).
  7. EnhancedCooperation(Art 20 TEU, 326-334 TFEU)Overview The Treatiesdevote 10 provisions to enhancedcooperation, framed by a long series of substantive and procedural conditions. Evenwhenthoseapply, recourse to enhancedcooperationis not automatic: Activation requires a proposal made at the discretion of the Commission; Proposal must beapproved by the Council and the EuropeanParliament. Art 20 TEU lays down 2 important conditions to enhancedcooperation: Used as a last resort; Furthering of the objectives of the Union.
  8. EnhancedCooperationmeasuresLAST RESORT? Whatismeant by last resort? No definition in the treaties Exceptthat ‘ the objectives […] cannotbeachievedwithin a reasonable time by the Union as a whole’ Difficultyarises where: The objective(s) underlyinglegislative action canbeachieved via several, equallysuitable, policy options (policy options 1 & 2) If negotiations on an EU-widemeasurebased on policy option 1 fail, Should an enhancedcooperationmeasurebased on thispolicybeconsidered as the second best option (‘last resort’)? Or Should an EU-widemeasurebased on policy option 2 beattempted first? This question reveals a tension inherentwithinenhancedcooperation: should the prioritybe to achieve more for some EU citizens or (possibly) less for virtually all EU citizens?
  9. EnhancedCooperationmeasuresFURTHERING THE UNION'S OBJECTIVES? Two types of objectives must be distinguished within Art 20 TFEU: Art 20(2) requires that enhanced cooperation be considered only where the objectives [of a specific measure] cannot be attained within a reasonable time by the Union as a whole. Such objectives however are themselves chosen to further Art 20(1) objectives: the objectives of the Union.
  10. EnhancedCooperationmeasuresFURTHERING THE UNION'S OBJECTIVES? Enhanced cooperation may act as a catalyst for other States joining the participating States. It may also signal the start of greater variable geometry. In EU family law, the repeated use of enhanced cooperation is particularly difficult to justify: It is very detrimental to legal certainty for the citizens. Yet legal certainty is a prerequisite of an area of true justice. An Area of Justice is a core objective of the Union. Enhanced cooperation should thus only be considered in truly exceptional circumstances.
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