Beyond the above mention must be made of the family law-related provisions of EU-level private international law norms. Through the amendments made in the Treaty of Amsterdam and the establishment of the Area of Freedom, Security and Justice, the view that family relations did affect EU law and, vice versa, EU law also affected family relations, grew increasingly stronger. As a first step, Brussels II Regulation105 was adopted as the communitisation of the Brussels II Convention, which deals with issues of family law relevance specifically, such as jurisdiction in procedures on matrimonial matters and parental responsibility for the children of spouses as well as the recognition and implementation of resolutions.
This was thus the first EU norm in the field of justice cooperation in the civil law cases formulated in the Treaty of Amsterdam, which made a very important step by recognising the mutual recognition and implementation of court deci-sions in the field of family law. Of equal significance was Regulation 2201/2003/EC, i.e. the ‘new Brussels II Regulation’ replacing the former regula-tion. The new regulation was made at a French initiative with the fundamental aim to extend the single jurisdiction and the mutual recognition and implementa-tion rules set up by the earlier regulaimplementa-tion to cases where the legal dispute related to parental guidance was not related to a matrimonial case but emerged indepen-dent of that.
One of the factors facilitating the adoption of the former acts was the Tampere Conclusions which declared that, within the framework of establishing a
‘gen-103 Art. 8 of the ECHR: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.
104 Council Directive 2003/86/EC on the right to family reunification, OJ L 251/12, 3.10.2003.
105 Council Directive 1347/2000/EC on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ L 160/19, 30.6.2000.
uine European area of justice’, judgements in the field of family litigation
‘would be automatically recognised throughout the Union without any interme-diate proceedings or grounds for refusal of enforcement’.106 It is a shortcoming of the above regulations at the same time that they did not include any rules on the applicable law itself. Thus, if a matrimonial case was brought before the court of a Member State, the applicable law was determined by the national con-flict-of-law rules of that particular Member State, and these, as we are aware, are based on very different criteria.107
As an attempt to remedy the above, the Commission adopted a Green Paper on the applicable law and jurisdiction in divorce matters in March 2005. The green paper launched a broad public consultation on potential solutions to the problems that could occur in the current situation. On the basis of this, in July 2006, the Commission made a proposal for amending Council Regulation 2201/2003/EC with reference to jurisdiction and introducing rules on the applicable law in matrimonial cases. At the same time, the Council arrived at the conclusion that there was no consensus on the proposal and there was unlikely to be one in the near future, either. It established furthermore that the objectives of the proposed regulation were not to be reached within reasonable time by the enforcement of the applicable provisions of the Treaties. Thus Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Luxemburg, Hungary, Malta, Austria, Portugal, Romania and Slovenia made a request to the Com-mission according to which they wished to establish enhanced cooperation among themselves in the area of the law applicable in matrimonial cases.108
It is unsurprising that Member States strive for cooperation in the above issue.
According to the current data, of the approximately 122 marriages in the Euro-pean Union some 16 million (13%) are of a cross-border nature. Besides, from the 875,000 divorces initiated in the Union per year, 170,000 aim at the dissolu-tion of an ‘internadissolu-tional marriage’, and there are very big differences between the conflict-of-law norms of Member States with reference to the applicable law in the case of the dissolution of marriages.
The detailed rules on selecting the applicable law for ‘international’ marriages are laid down in what is referred to as the Rome III Regulation.109 The regulation took effect on 21 June 2012 and does not concern national regulations on divorces and marriages; it merely aims to make the conflict-of-law rules for
106 Miklós Király, ‘Egység és sokféleség’, Új Ember, 2007, p. 68.
107 Differences between national conflict-of-law rules thus lead to serious legal uncertainty, not to speak of encoruaging spouses to ‘running to court’.
108 In the meantime Lithuania has joined the cooperation as the 16th state. States that have not joined the cooperation continue to decide on the law applicable to divorce cases on the basis of their own legislation.
109 Council Regulation 1259/2010/EU implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343, p. 10.
determining the applicable law for divorce and separation cases in the participating Member States more uniform.
Considering its material scope, the regulation determines the applicable law for the dissolution of international marriages exclusively, i.e. it is only to be ap-plied in cases where the state of affairs is related to different states. The regula-tion is of universal force, which means that its provisions are applied by a mem-ber state court irrespective of whether the governing law in the case is the law of a Member State where the regulation is in force or where the regulation is not in force, or is a third-country legislation of a non-member state.
In the regulation the principle of autonomy is implemented, which allows for the parties’ free choice of law.
In their choice of law, parties have the following alternatives to choose from:
• the law of the country where they both have their habitual residence, or
• the law of the country of their previous common habitual residence pro-vided one of them is still staying there,
• the law of the country of one of the spouses by citizenship,
• the law of the country of the administering court (lex fori).
For determining the applicable law where there is a lack of choice of law, the regulation sets up a gradual set of rules by merging the two principles that are the usual connecting factors in family law: the law of the country of habitual residence and that of the state by citizenship.110
As regards the secondary legislation on freedom, security and justice, mention should be made furthermore of Council Regulation 4/2009/EC on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.111 This regulation aims to make de-cision-making and the enforcement of decisions easier for the eligible party in the case of maintenance obligations arising in cross-border situations. The regu-lation has a very broad scope of implementation covering any and all mainte-nance obligations arising from family and kinship relations, marital bonds or kinship by marriage. Although it is not a part of family law in the narrow sense of the concept, mention should also be made of the regulation on succession112 adopted by the European Parliament and the Council in 2012, which is to facili-tate the administration of cross-border succession cases in future by harmonising
110 Dezső Tamás Cziegler & Katalin Raffai, ‘Az európai integráció újabb állomása: egységesülő európai nemzetközi (kollíziós) családjog?’, Külgazdaság, Vol. LVII, Nos. 5–6, 2013, pp. 43–69.
111 Council Regulation 4/2009/EC on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L7, pp. 1–79.
112 Regulation 650/2012/EU of the European Parliament and of the Council, on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instru-ments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107, 27.7.2012.
the rules on the governing and the applicable law in succession cases in the Union. The main connecting factor of the regulation for determining both the ju-risdiction and the applicable substantive law is the testator’s habitual residence at the time of his death.