“INTERNATIONAL FAMILIES” UNDER EU PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA University, Rome 27 March 2018 dnpstr@unife.it

Practical information Presentation of the course Methodology: power-point presentations (uploaded online) interactive lessons (seminars, in-class practical cases’ resolution, discussion of relevant case law, simulations) Monday, 16 April 2018, 13h-15h: Prof. Ornella Feraci’s seminar

Practical information Content of the course: The course aims at providing a comprehensive knowledge, through a practical approach, of the EU Private International Law in the field of Family Law. The goal of the course is to build a professional competence aimed at the prevention (counseling) and (judicial and extrajudicial) resolution of cross-border disputes in family matters. Attendance: compulsory, up to three absences allowed, evidence required. Materials: EU legislative instruments and relevant ECJ case law uploaded in class.

Practical information Reference texts (selected pages only): P. Stone, EU Private International Law, Edward Elgar Publishing, 2014, third edition: - Chapter 17 “Matrimonial proceedings”, pp. 419- 440.

Practical information Final exam: 2nd May 2018, at 8 h Written test, multiple choice + resolution of a practical case (duration: 2 h) If a higher mark is desired, any interested student may ask for an additional oral question on the official exam sessions, which are going to take place on: 29 May, 13-15 h 28 June, 13-15 h 19 July, 13-15 h 12 September, 13-15 h 26 September, 13-15 h Office hours: Professor Hall – at request by e-mail (dnpstr@unife.it)

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS Some data in the EU: More than 16 million of “international couples” (EU Commission) Among 2,4 million, 13 % marriages celebrated features an international element (20 % civil partnerships – 21.000 out of 211.000) 140.000 “international divorces” per year 1.800 international child abductions per year

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS Family law – a matter falling under Member States’ sovereignty (picture of a given State in a certain moment) TFEU, Chapter 3 – Judicial cooperation in civil matters: Article 81 (ex Article 65 TEC) “1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS “2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (…)

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS 3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision”.

EU PRIVATE INTERNATIONAL LAW IN FAMILY MATTERS “those aspects of family law with cross-border implications” (ex art. 81, par. 3) refers to the following questions (previously known: 1. which court/authority is competent to decide?  rules on jurisdiction 2. which law applies?  conflict-of-law rules 3. how does the decision circulates in other States different from the State where the decision was rendered?  rules on recognition and enforcement 4. how to facilitate “administrative” cooperation among authorities based in different States?

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS However  enhanced cooperation mechanism (article 326 ff. TFEU): - group of MS addressing the request to the EU Commission, specifying the scope and objectives of the enhanced cooperation proposed; - Council authorization; - Authorization to proceed with enhanced cooperation shall be granted by a decision of the Council acting unanimously.  Regulation (EU) n. 1259/2010 establishing an enhanced cooperation on the law applicable to separation and divorce proceedings (Rome III regulation).

EU PRIVATE INTERNATIONAL LAW (EU PIL) IN FAMILY MATTERS Fragmented scenario: Regulation (EC) no 2201/2003 on jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (“Brussels II bis” regulation); - Regulation (CE) n. 4/2009 on jurisdiction, recognition and enforcement of judgments and law applicable to maintenance obligations; - Regulation (EU) n. 1259/2010 on the law applicable to separation and divorce proceedings (“Rome III Regulation”) + Prof. Feraci’s seminar  CJEU’s interpretation activity

EU Pil in family matters: rules on jurisdiction Regulation (EC) n. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n. 1347/2000 (“Bruxelles II bis” Regulation) Previous 1998 Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial mattes, commonly referred to as the Brussels II Convention, not entered into force  Explanatory Report by A.Borràs As from 1st March 2005, Brussels II bis regulation has repealed the Convention. Regulation Brussels II bis is currently under review (proposal submitted on 30th June 2016)

Regulation (EC) n. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II bis” Regulation) It only lays down rules on jurisdiction, recognition and enforcement, but not conflict-of-law rules “Preliminary issues”: - temporal scope of application - material scope of application - personal scope of application

RULES ON JURISDICTION ON MATRIMONIAL MATTERS Divorce, legal separation and marriage annulment, Article 3 - General jurisdiction “1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: - the spouses are habitually resident, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the respondent is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses. 2. For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland”.

The Habitual Residence (HR) WHAT: The habitual residence (HR) as the main personal head of jurisdiction (and connecting factor – Rome III regulation) in the EU PIL in family matters; WHERE: “from The Hague to Brussels”. Hague Conventions, national PIL (re)codifications (i.e. Italy and Belgium), reg. 2201/2003, 1259/2010 - other EU PIL instruments. Focus on Articles 3, 8 and 10 of Regulation “Brussels II-bis”; WHY: raison d’être – EU policies underlying its use: differences (traditional tension) between HR, domicile and nationality. Need of balance between the (policies of) protection of cultural identity and integration: combination of factors (recalling Hadadi);

The habitual residence (HR) WHO: lacking a uniform notion of HR by the EU legislator (flexibility vs. definition’s firmness)  main role played by the interpreter. Determination of the HR has to be reached following the uniform “tracks” given by the CJEU, on a case-by-case basis. Attempt of “definition” (or at least of description of elements that shall be taken into account in order to identify it) in some national PIL systems (but see also reg. 650/2012). HR’s factual nature.

Habitual residence (HR) Ex. from Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European certificate of succession, indent 24: “In certain cases, determining the deceased’s habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances”.

Habitual residence (HR) Constitutive elements of the HR (translating the expression “habitual”): - the objective factor: factual indicators, protection of third parties’ expectations; - the psychological factor: ECJ case-law on the determination of the HR, also taking into account other fields (Swaddling). Is it possible to transpose such notions in this context? Intertextual interpretation – Practice Guide for the application of “Brussels II-bis” regulation. The intention of the party/parties to establish his/her/their main (and fix) centre of interests in a certain place does not have to be deduced (or assumed), but has to clearly result from empirical data. - the “categorization” of HR: HR of adults/HR of minors… the newborn; material interests to be taken into account when HR is identified in the case at stake (categories of people & categories of interests).