An academic perspective Helen Toner

Competences? Migration/entry Cross-border recognition Internal family law

Dir 2004/38 ‘Spouse’ – but what does that mean? RP, if formed under law of a MS State and if legislation of host state (not state of origin) treats as equivalent to marriage Unmarried … State must ‘facilitate’ entry (McCollum) TCN sponsors? MS discretion (‘may’ admit) even for registered partnerships

The current issues Recognition of marriages … Registered partnerships travelling And uncertainty about ‘facilitation’ … … and what about the children?! Reluctance to ‘push’ sceptical member states too far until ready to adopt measures in national law

Examples? Migrant Dutch marriage (Ger-US) that couldn’t move to Austria  and didn’t get to ECJ – also German case Case on ‘other family members’ referred from the UK … may clarify and possibly strengthen? concept of ‘facilitation’ ILGA website, FRA report, Commission report on implementation – clearly some gaps still do remain

Solutions? Litigation ?? Lobbying and legislative change ?? What ideas and concepts are changing the legal landscape and underlying concepts and ideas??

Charter of Fundamental Rights Equality, marriage, family life and citizenship … All may give a harder legal edge to arguments, litigation and lobbying, and possibly to development of distinctive EU approaches to these issues But not create new competences

Equality Karner v Austria (ECHR) Maruko Romer

Family life? Schalk & Kopf (ECHR) ‘Respect’ for Family life in ECHR caselaw … do we need a distinctive EU approach to this concept to facilitate choice of family residence?

Citizenship discourse? Can free movement (eg Carpenter) and now EU Citizenship principles (Baumbast, Chen …) assist? Now Ruiz Zambrano which may very profoundly influence scope and reach of EU Citizenship rights

Citizenship and civil status There is another ‘citizenship’ angle – recognition of civil status Especially cases on names – although recognition of parentage, marriage and partnerships also raise issues Commission has started discussion although recognises some issues will be easier than others

Mutual recognition, family law AFSJ... Competence to act in cross- border situations Family law ‘proper’ still competence of MS – but needs to be exercised compatibly with EU law