Cross-border aspects of family and succession law form part of EU judicial cooperation in civil matters (Article 81, Treaty on the Functioning of the EU – TFEU). The EU can adopt rules concerning conflict of laws and jurisdiction in civil matters when there are cross-border implications, as well as on recognition of judgments, though substantive family law remains a Member State competence.
Family law affects citizens’ daily lives and the Union acknowledges its importance. Already in 1989, the Court of Justice of the European Union stated that ‘respect for family life…is one of the fundamental rights’ (Commission v Germany, Case 249/86, para 10). Therefore, it is important for the EU to promote judicial cooperation in family and succession law so that people encounter fewer difficulties when they exercise their right to move freely from one Member State to another. Especially for families, it is of the utmost importance that they are not prevented from exercising their rights and that they do not suffer legal problems as a consequence of moving across borders – or simply because the partners have two different nationalities. The need for legal certainty concerns both existing families and those that have broken up, especially when children in common are involved.
The EU adopts legislation on cross-border aspects of family law by special legislative procedure (Art. 81.3 TFEU): after consulting the European Parliament, the Council (Member States’ representatives) must pass acts by unanimity. Decisions on cross-border aspects of succession law are taken in accordance with the ordinary legislative procedure. This means that the European Parliament and the Council decide on a Commission proposal on an equal footing.