The Directed Studies of The Hague Academy on Private International Law – An Insider’s View (pt. 3)

Résumé : Durant la troisième session des Directions d’études, nous avons examiné les avantages comparatifs de la méthode de la reconnaissance par rapport à celle, plus complexe, du droit international privé. Grâce à la première de ces méthodes, la validité des documents publics bénéficieraient, dans l’idéal, d’une reconnaissance automatique dans tous les États membres. A l’heure actuelle, cependant, la validité (et donc la reconnaissance) de ces documents dépend encore de la loi qui leur est applicable. Les bénéfices de la méthode de la reconnaissance sont particulièrement visibles en matière de droit de la famille, domaine dans lequel la diversité se fait parfois insupportable pour les citoyens de l’UE. Or, cette méthode suffira-t-elle à réconcilier les disparités ?

Today, we continue our weekly thought experiment by examining the benefits of the recognition method, compared to private international law. We debated this topic during the third session of the Directed Studies of The Hague Academy on private international law (a summary of the previous sessions is available here and here). Because of the complexities that the application of conflict of law rules causes, many support the use of a more straightforward system, i.e. the recognition method, according to which (judicial and/or administrative) authorities of a Member State –called the Member State of recognition– must accept the formal (instrumentum) and material (negotium) validity of public documents/records issued in another Member State –the Member State of origin. It has to be highlighted that our session did not address the transnational effect of judgments and authentic instruments, inasmuch as it is currently secured by a large number of European regulations. As we explain in the next paragraphs, however, the recognition of legal status acquired abroad remains highly problematic.

The Intricacies of Conflict of Laws: An Example

The complexity of the traditional conflict of law method is best illustrated by family law matters. Indeed, although European legislations, as well as Hague Conventions usually cover the effects of family relationships, such as adoption, marriage or divorce, their creation and termination is governed by national laws, which regulate those matters in very different ways. This is typically the case as regards same sex marriage and surrogacy. In all cases, the validity of a legal status acquired in the Member State of origin will be examined according to the corresponding applicable law. For example, the legal capacity of the spouses to marry, the form of the act and its effects may all be governed by a different law. Therefore, in addition to the difficulties that this approach generates, the application of one national law or another leads to different results and creates legal uncertainty.

Unfortunately, legal pluralism threatens the continuity of European citizens’ legal status. When the Member State of recognition does not accept the validity of a certain situation created or terminated abroad, “limping family relations” arise. As a result, the freedom of movement is affected, as well as the respect of the human right to private and family life (Article 8 of the European Convention on Human Rights (ECHR)).

The Wagner case is a telling example in this context. In Wagner and J.M.W.L. v. Luxembourg, the courts in Luxembourg refused to recognise the adoption of a Peruvian child by Ms. Wagner, an unmarried woman and a citizen of Luxembourg, even though the procedure was completed in accordance with the law of Peru. The Court of first instance explained that, under the private international law norms applicable in Luxembourg, the law of the adoptive parents governs the validity of the adoption, i.e. the law of Luxembourg. Nevertheless, the substantive law of that State does not permit the adoption by single parents (Article 367 of the Luxembourgish Code of Civil Procedure). Therefore, recognising the validity of the adoption would contradict the public policy of the forum State. Both the Court of Appeal and the Court of Cassation upheld the judgment of the lower Court. Subsequently, however, the European Court of Human Rights declared that, by allocating precedence to national rules on conflict of laws, the Luxembourgish courts violated Article 8 ECHR. In light of the best interests of the child, national “courts could not reasonably disregard the legal status validly created abroad and corresponding to a family life within the meaning of Article 8 of the Convention” (para 133).

Is the Recognition Method a Panacea?

The Wagner case perfectly illustrates the limits of conflict of laws. In light of this, one might wonder whether recognition should simply supplant private international law. It is true that the recognition method enjoys significant advantages, such as simplicity (since it is not necessary to pin down the law applicable), and stability of private relationships.

Notably, the European Commission supports the adoption of such a method for the recognition of public documents, to such an extent that, in its Green Paper on less bureaucracy for citizens, it advocates the automatic recognition of the content of said documents (negotium) in addition to its formal validity (instrumentum). Along the same line of reasoning, one might wonder whether private situations, i.e. situations created by individuals without the intervention of a public authority, could equally be automatically recognised in other Member States. For the time being, however, the recognition method is usually limited to the formal aspect of public documents, as the recent Regulation (EU) 2016/1191 shows (see Article 2(4)).

Nevertheless, this method has drawbacks too. Notably, the unconditional recognition of legal status acquired abroad might foster legal tourism. Accordingly, European citizens could forum shop in search for the most appropriate legislation. They could then obtain the inscription of their acquired status in a given public register and require its recognition in the Member State of their habitual residence. Additionally, some institutions, such as marriage between same-sex partners or surrogacy, are still unknown to some Member States and thus, the recognition of a derived legal status might generate important difficulties.

As a conclusion, the benefits of the recognition method are undeniable. Nevertheless, it is not clear that such a method can/should substitute private international law. Moreover, both harmonisation of substantive national laws (in family matters, for example) and cooperation between Member States represent competitive alternatives that one also has to consider.

Alexia Pato, Research assistant at the EBS University (Wiesbaden)

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