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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
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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