Izvorni znanstveni članak
Enhanced Cooperation – Quo vadis, Europa?
Ines Medić Musa
; Pravni fakultet Sveučilišta u Splitu, Split, Hrvatska
Sažetak
The author gives an overview of European legislation in family law matters, more accurately in matters of divorce and separation. Increasing cross-border mobility within the EU and numerous challenges require fast and effective solutions. Existing international instruments, thus being of an extraordinary caliber, most often cannot follow anticipated dynamics of the EU development. Therefore, increased activity of the Union in the respective areas does not come as a surprise.
Existing legal instruments of the Community in family law matters encompased rules on international competence, as well as on recognition and enforcement. Nevertheless, problems were thereby only partially resolved. Second part of the problem is caused by the diversity of national family laws in Europe, what in cross-border situations may lead to loss or alteration of rights and obligations and respectively to "limping family-law situations". On this ground, national family law is more and more construed as a limitation factor, that directly jeopardizes basic freedoms guaranteed with the Amsterdam Treaty (Treaty establishing the European Community). Since harmonization of the national divorce and separation rules has turned out to be impossible, possibility of harmonisation of conflict of law rules became more and more interesting. After the initial failure, the problem is unexpectedly "resolved" thanks to the initializing of the "enhanced cooperation mechanism" for the first time in the history of the EU. The result is Council Regulation (EU) No. 1259/2010 implementing enhanced cooperation, which leads to so called "two-speed Europe" for cross-border divorce law.
Purpose of this paper is to shortly point to the flaws of the existing ruls on international competence in divorce matters on the Union level, that neither provide legal certainty nor the transparency of the results, but at the same time entice both forum shopping and race to court; which finaly led to contemplating harmonisation of conflict of law ruls in divorce and separation on the Union level. Besides that, the author gives a short historical overview of the activities that lead to adopting the Council Regulation (EU) No. 1259/2010, which serves as a platform for retrospective critical insight into the advantages and disadvantages of such approach to the subject matter.
Ključne riječi
private international family law; divorce and legal separation; applicable law
Hrčak ID:
93100
URI
Datum izdavanja:
3.5.2012.
Posjeta: 2.074 *