PONÈNCIA
A LES XIII
JORNADES
DE DRET
CATALÀ
A TOSSA
PRIMERA
PONÈNCIA
L' "EUROPEÏTZACIÓ" DEL DRET DE
FAMÍLIA
Family Law. A Challenge for Europe?
Walter Pintens
Professor at the University of Leuven
I. Two Cases by Way of Introduction
1.
The
Garcia Avello Case
1.1
The Facts
1.2
The
Preliminary Ruling
2.
The Pla
and Puncernau Case
2.1
The Facts
2.2
The
Judgment
II. The Increasing Influence of
European Law on Family Law
1.
Case Law
1.1
Court of
Justice
1.2
European
Court of Human Rights
2.
Legislation
2.1
European
Union
2.2
Council
of Europe
III. Harmonisation: A Challenge for Europe!
1. The Garcia Avello Case
Carlos Garcia Avello,
a Spanish national, and his Belgian wife, Isabelle Weber, reside in
Belgium and have two children. The children have dual nationality.
Belgian law requires children to take the surname of their father. On
their birth certificates, therefore, the children were registered with
the name Garcia Avello. In line with Spanish custom the parents
requested the Belgian King to change the surname of their children from
Garcia Avello to Garcia Weber. They argued that the current name of the
children could lead Spanish people to believe that the children are in
fact his siblings and that there is no connection with the mother of the
children. Practical difficulties could arise from the children
effectively having differing surnames in Belgium and in Spain.
The application was
denied as contrary to Belgian practice. Mr Garcia Avello challenged that
refusal before the Belgian Conseil d’Etat, the highest administrative
court. That court referred a question to the Court of Justice of the EC
as to whether the refusal was contrary to Community law, in particular
the principles relating to the citizenship of the European Union and the
freedom of movement.
Articles 12 EC and
17 EC must be construed as precluding, in circumstances such as those of
the case in the main proceedings, the administrative authority of a
Member State from refusing to grant an application for a change of
surname made on behalf of minor children resident in that State and
having dual nationality of that State and of another Member State, in
the case where the purpose of that application is to enable those
children to bear the surname to which they are entitled according to the
law and tradition of the second Member State.
2. The Pla and Puncernau Case
Excerpt from the
judgment:
“In 1949 Mrs
Carolina Pujol Oller, the widow of Francesc Pla Guash, died leaving
three children: Francesc-Xavier, Carolina and Sara. She had made a will
before a notary in 1939. Under the seventh clause of her will she
settled her estate on her son, Francesc-Xavier, as tenant for life.
Should he be unable to inherit, the estate was to pass to his sister,
Carolina, and if she was also unable to inherit, it was to pass to
Sara’s son, Josep Antoni Serra Pla.
The testatrix
indicated that Francesc-Xavier, the beneficiary and life tenant under
her will, was to transfer the estate to a son or grandson of a lawful
and canonical marriage. To that effect she had inserted the following
clause in her will: “The future heir to the estate must leave it to a
son or grandson of a lawful and canonical marriage ...” (“El qui arribi
a ésser hereu haurà forçosament de transmetre l’herència a un fill o nét
de legítim i canònic matrimoni ...)”.
Should those
conditions not be met, the testatrix had stipulated that the children
and grandchildren of the remaindermen under the settlement would be
entitled to her estate.
The beneficiary
under the will, Francesc-Xavier, contracted canonical marriage to the
second applicant, Roser Puncernau Pedro. By deed drawn up on 11 November
1969 before a notary in La Coruña (Spain), they adopted a child, Antoni,
in accordance with the procedure for full adoption. They subsequently
adopted a second child.
In 1995 Francesc-Xavier
Pla Pujol made a will in which he left 300,506 euros (EUR) to his son,
Antoni (the first applicant), and EUR 180,303 to his daughter. He named
his wife, Roser (the second applicant), sole heir to the remainder of
his estate. In a codicil of 3 July 1995 Francesc-Xavier Pla Pujol left
the assets he had inherited under his mother’s will to his wife for life
and to his adopted son, Antoni, as remainderman. The assets in question
consisted of real estate. On 12 November 1996 Francesc-Xavier Pla Pujol
died. The codicil was opened on 27 November 1996.
Accordingly, the
only potential heirs to the estate under the will are the applicants,
Antoni Pla Puncernau and his mother, and two sisters, Carolina and
Immaculada Serra Areny, who are the great-grandchildren of the
testatrix.
The applicants
lodged an empara appeal with the Constitutional Court against the
decisions of the High Court of Justice. They alleged a violation of
Article 13(3) (principle of children’s equality before the law
regardless of filiation) and Article 10 (right to judicial protection
and a fair trial) of the Andorran Constitution. In a decision of 13
October 2000 the Constitutional Court declared their appeal inadmissible
for the following reasons:
“... It seems clear
that the judgment of the High Court of Justice is limited to clarifying
and determining, that is, interpreting, a specific point concerning the
testatrix’s intention, as expressed in her will in the form of a family
settlement in favour of a child or grandson of a lawful and canonical
marriage.
The
High Court of Justice does not at any point suggest that there is
general discrimination against or inequality between children according
to whether they are biological or adopted. Such an assertion would
evidently amount to a flagrant breach of Article 13(3) of the
Constitution and would also be contrary to the prevailing legal opinion
according to which legal systems must always be interpreted, which is
that all children are equal, irrespective of their origin. However, as
submitted in substance by State Counsel, “discrimination against adopted
children as compared to biological children does not in the instant case
derive from an act of the public authorities, that is, from the judgment
of the Civil Division of the High Court of Justice, but from the
intention of the testatrix or settlor regarding who should inherit under
her will” in accordance with the principle of freedom to make
testamentary dispositions, which is a concrete manifestation of the
general principle of civil liberty.
In
its judgment the High Court of Justice confined itself to interpreting a
testamentary disposition. It did so from the legal standpoint that it
considered adequate and in accordance with its unfettered discretion,
seeing that the interpretation of legal instruments is a question of
fact which, as such, is reserved to the jurisdiction of the ordinary
courts.
...”
Excerpt:
“59. Admittedly, the
Court is not in theory required to settle disputes of a purely private
nature. That being said, in exercising the European supervision
incumbent on it, it cannot remain passive where a national court’s
interpretation of a legal act, be it a testamentary disposition, a
private contract, a public document, a statutory provision or an
administrative practice appears unreasonable, arbitrary or, as in the
present case, blatantly inconsistent with the prohibition of
discrimination established by Article 14 and more broadly with the
principles underlying the Convention (see Larkos v. Cyprus [GC],
no. 29515/95, §§ 30-31, ECHR 1999-I).
60. In the present
case the High Court of Justice’s interpretation of the testamentary
disposition in question had the effect of depriving the first applicant
of his right to inherit under his grandmother’s estate and benefiting
his cousin’s daughters in this regard. Furthermore, the setting aside of
the codicil of 3 July 1995 also resulted in the second applicant losing
her right to the life tenancy of the estate assets left her by her late
husband.
Since the
testamentary disposition, as worded by Carolina Pujol, made no
distinction between biological and adopted children it was not necessary
to interpret it in that way. Such an interpretation therefore amounts to
the judicial deprivation of an adopted child’s inheritance rights.
61. The Court
reiterates that a distinction is discriminatory for the purposes of
Article 14 if it has no objective and reasonable justification, that is
if it does not pursue a legitimate aim or if there is not a “reasonable
relationship of proportionality between the means employed and the aim
sought to be realised” (see, inter alia, Fretté v. France, no. 36515/97,
§ 34, ECHR 2002-I). In the present case the Court does not discern any
legitimate aim pursued by the decision in question or any objective and
reasonable justification on which the distinction made by the domestic
court might be based. In the Court’s view, where a child is adopted
(under the full adoption procedure moreover) the child is in the same
legal position as a biological child of his or her parents in all
respects: relations and consequences connected with his family life and
the resulting property rights. The Court has stated on many occasions
that very weighty reasons need to be put forward before a difference in
treatment on the ground of birth out of wedlock can be regarded as
compatible with the Convention.
Furthermore, there
is nothing to suggest that reasons of public policy required the degree
of protection afforded by the Andorran appellate court to the appellants
to prevail over that afforded to the applicant.
62. The Court
reiterates that the Convention, which is a dynamic text and entails
positive obligations for States, is a living instrument, to be
interpreted in the light of present-day conditions and that great
importance is attached today in the member States of the Council of
Europe to the question of equality between children born in and children
born out of wedlock as regards their civil rights (see Mazurek § 30).
Thus, even supposing that the testamentary disposition in question did
require an interpretation by the domestic courts, that interpretation
could not be made exclusively in the light of the social conditions
existing when the will was made or at the time of the testatrix’s death,
namely in 1939 and 1949, particularly where a period of fifty-seven
years had elapsed between the date when the will was made and the date
on which the estate passed to the heirs. Where such a long period has
elapsed, during which profound social, economic and legal changes have
occurred, the courts cannot ignore these new realities. The same is true
with regard to wills: any interpretation, if interpretation there must
be, should endeavour to ascertain the testator’s intention and render
the will effective, while bearing in mind that “the testator cannot be
presumed to have meant what he did not say” and without overlooking the
importance of interpreting the testamentary disposition in the manner
that most closely corresponds to domestic law and to the Convention as
interpreted in the Court’s case-law.
63. Having regard to
the foregoing, the Court considers that there has been a violation of
Article 14 read in conjunction with Article 8.”
1. Case Law
At the European
Union level, the European Court of Justice has served as an impetus to
harmonisation of law by linking certain aspects of family law to the
freedom of movement. These decisions are important, as they contribute
to the reduction of discriminations and administrative impediments, but
the Court cannot be expected to greatly contribute to a real
breakthrough in the field of harmonisation of law. However the Garcia
Avello case shows how far reaching the implications of EC law can be.
The European Court
of Human Rights has served as a catalyst for harmonisation though its
decisions and judgments, which have given a rough sketch of European
Family Law. The right to respect for private and family life as laid
down in Art. 8 E.C.H.R. has been of an enormous importance.
During last years
there is no consistence between the judgments of the Court. In quite a
lot of cases the Court is not maintaining his pioneering role and allows
the Member States a large margin of appreciation as in the Fretté case
(26.02.2002). Here the Court stated that the Convention was not violated
by the refusal of an adoption on the grounds of the adoptant’s
homosexuality. The appreciation of the interest of the child is left to
the Member State. In other cases the Court is severe and leaves no
margin at all as in the Pla and Puncernau case.
2. Legislation
The European Union
has no competence in family law. The transfer of judicial co-operation
in civil matters from the third to the first pillar by the Treaty of
Amsterdam has no implication for substantial family law but has
accelerated the process of unification of international family law.
With the adoption of
the Charter of Fundamental Rights (2000) the Union has acknowledged the
importance of the family.
The presidency
conclusions of the Laeken European Council (2001) mentioned the
harmonisation of family law as part of the efforts to resolve the
problems arising from differences between the European legal systems
The European
Constitution (2004) will activate those efforts in the field of private
international law, but will also have an importance in the field of
material law.
The Council of
Europe has met an important goal with its European Convention for the
Protection of Human Rights and Fundamental Freedoms and certain other
conventions, but other major initiatives should not be expected. Rather
than promoting unification of law by international conventions, the
Council is seeking to stimulate harmonisation through recommendations of
the Consultative Assembly and resolutions of the European Ministers of
Justice as well as through scientific meetings.
Family law will in
the long run - and this run could be shorter as we expect now- be part
of the activities of the European legislator. This legislator will not
be the Council of Europe but the European Union. The cited cases prove
that the time is not ripe for an institutional unification of
substantive family law. At first a phase of spontaneous approximation of
law is necessary. This approximation will be a task for research and
education.
