Prof. Silvia Marino University of Insubria, Como Italy
Thursday, 12 September – 2:00 pm Room W 101, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
Currently, the EU Regulations affecting cross-border family life cover almost all the aspects of the relationships between adults in a formalized relationship: from separation and divorce (Reg. 1259/2010), to the patrimonial effects (of the relationship itself and its breakdown; Regs. 2016/1103 and 2016/1104), to maintenance obligations (Reg. 4/2009), and finally, for some aspects, to successions (Reg. 650/2012). For each aspect, specific choice-of-law rules are envisaged. The present study wishes to focus on one particular approach adopted in all these regulations, ie the flexibility of the conflict rule. Many features lead us to submit that the Regulations depart from the classical conflict rule, rigidly determining the law applicable to the relationship. These are, for example, agreements on the applicable law; the individuation of exceptional cases (as in the maintenance obligations regulation); a margin of appreciation left to the judge; the relevance of the legitimate interests of the parties (as in the matrimonial regimes). These elements increase in number in the latest regulations, so that the determination of the applicable law must pass through at least two phases: the application of the general rule; the possible individuation of an exception to it (due to different reasons). It is therefore interesting to analyze these flexible rules in a combined approach, verifying their impact on the determination of the applicable law from both the theoretical and the practical points of view. For example, the admission of the party autonomy in the field of divorce canbe considered a great step towards the flexibilisation of the conflicts’ rule, which not all EU MemberStates had already recognized before the adoption of Reg. 1259/2010 (neither has been entirely accepted afterwards, as the enactment of an enhanced cooperation proves).
The final aims are to ascertain to what extent the regulations effectively depart from the classical conflict approach and if the rules can be considered as for part of a movement towards the privatization of family law (at least in cross-border cases); and which role plays the seized judge and the parties in the final determination of the applicable law.