CIVIL STATUS RECOGNITION AND THE EXERCISE OF FREE MOVEMENT RIGHTS IN THE EU

Abstract

A significant proportion of the civil status situations of European citizens contain a cross-border element. However, differences between national legal regimes in this field create obstacles to free movement, while raising the question of the extent to which a civil status legally established in one Member State must be acknowledged in others. EU legislation mainly provide solutions concerning the effects of civil status situations, rather than their existence, creation, or recognition, which remain within the exclusive competence of the Member States. Nevertheless, the absence of unified rules in this area has a direct impact on the effective application of existing EU private international law rules and may hinder the effective exercise of fundamental rights derived from primary EU law. In response, the Court of Justice of the European Union has developed extensive case law limiting Member States’ autonomy in matters of civil status where the exercise of rights conferred by EU law is affected. The Court relies in particular on the principles of non-discrimination, EU citizenship and the free movement of persons, as enshrined in Article 21 TFEU and the Charter of Fundamental Rights of the EU. The right of EU citizens to move and reside freely within the territory of the Member States is closely linked to their right to family life, especially in cases involving children and diverse forms of family unions, such as same-sex marriages, same-sex parenthood, surrogacy, and other non-traditional family arrangements. While free movement and family reunification should, in principle, be ensured for members of all families, the question arises as to whether, and to what extent, Member States may be required to give effect to civil status situations that are not recognised under their national law, solely for the purposes of ensuring the free movement of people. Given that EU instruments regulate only the effects of civil status, the CJEU has adopted a cautious approach, with respect of Member States’ competence and intervening only where national rules interfere with the exercise of fundamental rights under EU law, particularly the right to free movement. This paper starts from the hypothesis that such an effects-based and limited approach may leave significant gaps in legal certainty for EU citizens whose civil status is not uniformly acknowledged across the Union, especially in cases concerning children and families in non-standard arrangements.