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Common Core or Enhanced Cooperation in European Family Law?

Silvia Marino

Family Law is one of the most sensitive areas of law for States. This is demonstrated in Europe by two factors. The first one is related to the very limited EU competence in Family Law, related only to measures in the field of the civil judicial cooperation. The second one is to be found in the case law of the European Court of Human Rights, which interprets extensively art. 8 of the ECHR on the right to private and family life, but it keeps it subject to the margin of appreciation doctrine, and at the same time gives a limited material scope of application to art. 12 of the ECHR on the right to marriage. Nonetheless, many of the recent developments in Family Law are due to the concurring action of the EU law and case-law, and the ECtTHR case-law. Considering both the relationships between adults, and the family ties with minors as integral part of Family Law, the evolutionary approach started from the CJEU case in Reed, and its current final step is the ECtHR Paradiso and Campanelli case. This evolution might lead to assume that an European Common Core on Family Law now exists. However, national differences and approaches are still so pervasive, that this Common Core, if any, has a very limited extent. The evolutions and the reactions must be duly scrutinized. The different social sensibilities are respected in the European Courts, provided that they are non-discriminatory and justified. At the same time, this creates difficulties within the EU, since even regulations in the area of freedom, security and justice are adopted through the enhanced cooperation, and the EU citizens risk not to be free to circulate in different Member States.

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