The Europeanisation of International Family Law: The EU Legislature’s Competence

Abstract

In this chapter the European Union’s competence to enact measures in the field of international family law is discussed. International family law is brought more and more under the influence of the European Union. The biggest catalyst was the entry into force of the Treaty of Amsterdam in 1999, which granted the EU the competence to enact measures in the field of private international law (ex Article 61(c) in conjunction with Article 65 EC-Treaty) in order to progressively establish an area of freedom, security and justice. The recent Treaty on the Functioning of the European Union has taken the integration a step further by formally expanding the legal basis of the EU’s competence to establish private international law measures. Common rules for matters of international family law would serve a number of objectives. In the first place, such unified rules will serve a number of general goals: they will ensure more legal certainty, prevent forum shopping, provide for more decisional harmony, grant better protection to the legitimate expectations of the parties, prevent the development of limping relationships and contribute to the achievement of justice. These objectives would, however, be fulfilled by any unification and not specifically at the European level. There are, therefore, also proper ‘European’ policy objectives that play a role, such as the promotion of integration, enhance judicial cooperation, give substance to the concept of European citizenship and ensure the sound functioning of the internal market. The question arises whether the EU is competent to enact a European regulation unifying the choice of law on divorce. The assessment of this question shows that the requirements of both ex-Article 65 EC-Treaty and Article 81 TFEU are fulfilled.