Concepts of Family under EU Law - Lessons from the ECHR

Abstract

Recent years have seen the European Union (EU) institutions adopting a much more proactive role in the development and application of European family law and policy. Consequently, an important body of European Court of Justice (ECJ) case law has accumulated defining what it is to be a family member and delineating the level of social entitlement available to them, particularly in the context of the free movement provisions. These legal and judicial developments have more recently been complemented by a more modest yet growing corpus of academic literature critiquing the narrowness of the EU definition of family as premised on the traditional and increasingly exclusive notion of the legally married, nuclear and economically functional model. Equally problematic, yet rarely critiqued, is the apparent conflict between the EU approach to the family and fundamental principles of human rights which have become an increasingly prominent and explicit component of EU law in recent years, (particularly since the adoption of the Charter of Fundamental Rights in the European Union). This conflict is illustrated through a detailed comparison of the ECJ and the Strasbourg institutions' case law addressing the rights of family members in different family set‐ups. The article concludes by examining, on the one hand, the reasons behind the EU's reluctance to embrace a more liberal, realistic interpretation of the family as consistent with its human rights commitments and, on the other, argues in favour of adopting an approach akin to that of the European Convention on Human Rights institutions.