Gemensam familjerätt för EU-medborgare? - En kritisk analys rörande harmonisering av den materiella familjerätten inom EU

Sammanfattning: The European Union (EU) is an international organisation with 28 Member States. One of the main goals of the EU is to facilitate the freedom of movement for EU citizens. Furthermore, when people decide to move across the Member States different situations can occur, such as people getting married or people having children with someone from another Member State. The substantive family law within the EU is not harmonized. Consequently, the family law can differ from one Member State to another. The substantive family law is often connected to the development of society. It is also often connected to culture, norms or religion. Since it is regulated by the different Member States, it could lead to obstacles for the freedom of movement for EU citizens. The obstacles could derive from divergence in legislation and from legal uncertainty. The aim of this thesis is to highlight and analyse the discussion regarding the harmonisation of the substantive family law within the EU. This thesis therefore analyses the arguments for and against harmonisation of family law. Nevertheless, the thesis also aims to analyse and compare potential consequences of a harmonisation for EU citizens. It deals with a conflict of interests when the EU is aiming for European integration and the Member States want to protect their sovereignty. This thesis has a critical approach, which means that it questions the potential effects of a harmonisation from the perspective of the EU citizens. In order to analyse the discussion regarding harmonisation of the substantive family law, some rules regarding family law in Sweden and Malta are being compared. The reason why the comparison is between Sweden and Malta is because they are both members of the EU and their family law differs. The family law of Malta is, for example, influenced by religion and as a consequence Malta did not have any divorce law until the year of 2011. In Sweden, on the other hand, the view of the individual as an independent actor has been prominent in the marriage law since the 1970s. In order to fulfil the aim of this thesis a EU legal method, a comparative research and an analytical legal approach have been applied. The conclusions of the thesis are that EU should only act within the limits of the competences conferred in the Treaties. Moreover, according to the Treaties it is the Council that should establish measures concerning family law with cross-border implications. It should be established in accordance with a special legislative procedure whereby the Council needs to unanimously agree before adopting measures. Otherwise, it is possible for the Member States to instead establish enhanced cooperation between themselves. However, some areas of international private law regarding family law have been harmonized, such as maintenance obligations and succession between the Member States. It should not be forgotten that also the European Court of Justice can develop principles when a conflict with EU-law occurs. Nevertheless, the Commission on European Family law (CEFL) has created principles of European family law. CEFL has developed principles regarding divorce and maintenance between former spouses, parental responsibilities and property relations between spouses. These principles could serve as inspiration for the Member States or for the EU institutions in order to harmonise the substantive family law. Lastly, since a Nordic harmonisation has not yet succeeded, it could be questioned whether a European harmonisation would succeed. In order for a harmonisation of the substantive family law to be successful, a first step could be to develop common family law concepts within the EU, such as a concept regarding the best interest of the child.