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There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace. This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European institutions and national stakeholders. With contributions by Elena Bargelli (University of Pisa, Italy), Anne Barlow (University of Exeter, England, United Kingdom), Elena D'Alessandro (University of Turin, Italy), Elise Goossens (KU Leuven; Vrije Universiteit Brussel; University of Antwerp, Belgium), Nigel Lowe (Cardiff University, Wales, United Kingdom), Robert Magnus (University of Bayreuth, Germany), Maire Ni Shuilleabhain (University College Dublin, Ireland), Walter Pintens (KU Leuven, Belgium; Saarland University, Germany), Pablo Quinza Redondo (University of Valencia, Spain), Lukas Rass-Masson (University of Toulouse, France), Anne Sanders (University of Bielefeld, Germany), Jens M. Scherpe (University of Cambridge, England, United Kingdom; University of Hong Kong; University of Aalborg, Denmark; University of the Western Cape, South Africa), Wendy Schrama (Utrecht University, The Netherlands), Denise Wiedemann (Max Planck Institute for Comparative and International Private Law, Hamburg, Germany).
At the national level, the rules of substantive family and succession law work with private international law rules created specifically for these substantive laws. Hence, there cannot be any question that there is an interaction between the substantive family and succession law and private international law and that they significantly influence each other.
However, over the last 20 years, private international law instruments by the European Union (EU) in family law, and more recently also in succession law, have replaced or at least supplemented national private international law instruments. Given that these the instruments are intended to apply to all EU Member States, and thus to jurisdictions with different legal traditions and vastly different approaches to family and succession law, it was inevitable that frictions would arise. The aim of this edited collection is to look at these frictions or, more precisely, to map elements of the interaction between national family and succession laws, and EU private international law instruments in these fields. Given the breadth of the fields, it of course is not possible here (nor was it ever the intention) to offer a conclusive analysis of these interactions; rather, this volume has collected views by a dozen scholars from different jurisdictions on specific topics to provide an insight into how this interaction has had an impact on national laws and (EU) private international law. Hopefully this can and will provide a basis for further study, but will also be useful when future private international law instruments are being considered or drafted, and will facilitate a more open debate between European institutions and national stakeholders.
INFLUENCE WITHOUT LEGAL COMPETENCE?
Even though this should be obvious, it is necessary to state at the outset that of course the EU has no competence to legislate in the areas of substantive family or succession law, which the institutions are at pains to reiterate frequently. Hence, there is no EU family law or EU succession law, and no such laws can be created directly by the EU institutions. But since the Treaty of Amsterdam came into force in 1999, the EU has gained the competence to regulate judicial cooperation in civil matters and therefore in private international law matters.
