Extra-Judicial Administration of Justice in Cross-Border Family and Succession Matters

Background

The concept and the role of courts in family and succession matters presents a practical problem in the EU and its Member States. Most EU private international law instruments presuppose that justice in the area of family and succession law is still mainly administrated by courts. However, it is a current trend in the Member States to shift competences in family and succession matters from courts to other authorities such as notaries, civil status officers, child protection agencies, judicial officers, advocates or even the private parties themselves. Are the common provisions on jurisdiction, applicable law and recognition and enforcement of foreign judgments fit to deal with this ‘de-judicialisation’? Recent case law of the Court of Justice of the European Union (CJEU) suggests that there is need for reform.

The project will be divided into two phases. First, a preliminary study will be conducted, in order to identify the current controversial issues on the basis of the recent case law of the CJEU. The main objective of this phase is to produce a short policy statement.

The second step requires an in-depth comparative analysis in order to identify existing out-of-court proceedings and non-judicial bodies in family and succession law at a national level. This analysis is needed in order to both develop a harmonised concept of court in family and succession matters and adjust existing European instruments to the increasing de-judicialisation. The main objectives of this phase are to identify and circulate critical issues and best practices, in order to encourage national  legislators to implement substantive and procedural standards, to ensure a uniform application of EU instruments,; and to elaborate a Draft legislative proposal aiming at the amendment of current instruments (Brussels IIb Regulation, the Maintenance Regulation, the Hague Maintenance Protocol, the Rome III Regulation, the Succession Regulation and the Matrimonial Property Regulation for spouses and the Property Regulation for registered partners).

The project is currently financed by an action grant under the Justice Programme of the European Union and conducted in cooperation between the European Law Institute (ELI), the University of Pisa and the Ludwig-Maximilians-University Munich. Further information on the project can be found here.

Aim

The Concept and the Role of Courts in Family and Succession Matters aims to develop an outline for a harmonised European concept of courts, including  i.a. notaries and other actors traditionally not qualified as courts, building on the approach of the CJEU in its recent case law, to ensure a harmonised application of EU instruments in the Member States by detecting and developing best practices and minimum standards to be fulfilled.

Outcome

The first output of the project will be a policy statement addressed to both the European legislator and the CJEU. Rather than suggesting detailed solutions to the several questions surrounding non-judicial authorities at both national and EU level, it will  aim at the elaboration of recommendations and interpretative guidelines. A starting policy option would be to consider a more open definition of ‘court’ in the European instruments and the extension of the provisions on jurisdiction to other non-judicial authorities.

In the second phase of the project, the Team will aim at the detection of crucial questions and practical problems and  the identification of best practices at national level, in order to improve the application and implementation of out-of-court proceedings, and, in doing so, at the protection of the fundamental rights of the parties involved.

Further, the second planned output of that phase will be a proposal with guidelines and amendments to the following regulations: Brussels IIa and Brussels IIb Regulation, Maintenance Regulation, Rome III Regulation, Succession Regulation, Matrimonial Property Regulation for spouses and the Property Regulation of registered partners.