Fifteen Eighty Four

For most people, their family is the most important aspect of their life. The concept of ‘family’ is central to individual identity but an understanding of what constitutes a ‘family’ as well as how it interacts with law is of enormous importance also to the society.

Defining the concept of ‘family’ remains complex and contentious. Despite its foundational role in society, there is no universal definition of what constitutes a family in either social or legal terms. Variability and indeterminacy are its main characteristics, as family structures are deeply influenced by moral, religious, and political contexts, which vary widely across societies. This diversity creates significant challenges for legal systems, especially in legal systems such as that of the European Union (EU), where cross-border interactions require some degree of harmonisation or, at least, mutual recognition of familial statuses.

The new edited volume The Family in EU law (edited by Marja-Liisa Öberg and Alina Tryfonidou) explores this dynamic and offers a comprehensive analysis of how family is understood and regulated in contemporary legal frameworks, especially in the context of EU law. The volume brings together leading scholars from law and other disciplines to examine the tensions and challenges shaping family law in diverse social and legal landscapes.

Historically, family law has reflected the idealised ‘nuclear family’ model. However, societal shifts—including changes in gender roles, the rise of non-traditional family forms, and advancements in reproductive technologies—have put pressure on existing legal definitions. Today, families encompass a spectrum of relationships, from same-sex partnerships to multi-parent constellations, putting pressure on national and supranational legal systems to adapt.

The complexity of defining and regulating family ties at the supranational level underscores the delicate balance between respecting national diversity and fostering unity. The EU lacks legislative competence in the substantive family law field. This has resulted in the relegation of the regulation of family relationships to the national level. Yet, national family laws need to be interpreted and applied in line with EU law in situations that fall within the scope of the latter. EU law, therefore, indirectly shapes the family laws of its Member States. In particular, the EU has been concerned with regulating family relationships in situations that come within the scope of EU law and where some other issue which falls within EU competence (e.g. free movement, anti-discrimination law, asylum) is predominant. The legal understanding of ‘family’ under EU law has, thus, not been constructed in a systematic, structured, fashion. Rather, in EU law, the notion ‘family’ has developed on an ad hoc basis, determined by the main aims of the individual legislative instruments that (often implicitly) take this notion as a point of reference, and by the range of cases that have happened to reach the Court of Justice of the EU (CJEU).

Landmark cases like Coman (2018) and V.M.A. (2021) illustrate the CJEU’s (admittedly cautious) steps towards recognising non-traditional families in cross-border situations. However, these rulings stop short of imposing broader obligations, deferring to Member States on substantive family law matters. This ad hoc development has resulted in fragmented legal recognition of (non-traditional) families within the EU, which creates inconsistencies that affect individuals whose family forms fall outside traditional norms, often leaving them vulnerable to discrimination and exclusion. The EU’s cautious approach in this field also reflects broader challenges in aligning national traditions with the EU’s commitment to fundamental rights: the EU’s judiciary and institutions must tread carefully, ensuring that vulnerable groups, such as sexual minorities, are protected while the sovereignty of Member States and the limits to the EU’s legislative competences are respected.

By addressing the intersection of law, society, and evolving family dynamics, this volume contributes to critical debates on the future of family law in Europe. It underscores the importance of flexible legal frameworks that accommodate change while safeguarding human rights, offering valuable insights for scholars, policymakers, and practitioners alike.

The book is divided into four parts, each addressing different facets of the family under EU law.

Part I, covering Chapters 2 to 5, delves into the theoretical foundations of the family, exploring how family is defined in EU law and whether EU policies address family diversity adequately. In Chapter 2, Alina Tryfonidou critiques the traditional nuclear family model in EU law, which has long been limited to different-sex couples with biological children. It raises the question of whether EU law has adapted to the growing diversity of family forms. In Chapter 3, David Archard offers a philosophical perspective on the family, defending the idea that despite its evolving forms, the family remains a concept that deserves special legal protection. In Chapter 4, Ségolène Barbou des Places explores how EU law designates ‘family members,’ often extending the definition to include individuals who ‘perform’ familial roles such as caregiving, education, and socialization. In Chapter 5, Marja-Liisa Öberg examines the EU’s relationship with third countries and how family definitions in EU law apply to non-EU citizens, especially in the context of agreements concluded with the  countries of the European Economic Area, Turkey, and the United Kingdom.

Part II of the volume (Chapters 6-8) focuses on family rights under EU law. Xavier Groussot, Gunnar Thor Petursson, and Alezini Loxa analyse how family rights have been protected within EU law, particularly in free movement cases, and discuss the role of the Charter of Fundamental Rights in safeguarding family life. Michael Bogdan’s Chapter 7 looks at recent CJEU cases concerning the recognition of foreign family statuses, such as same-sex marriages and parental rights, while Chapter 8 by Albertina Albors-Llorens explores the enforcement of family members’ rights to free movement and residence under the Citizens’ Rights Directive (Directive 2004/38).

Part III (Chapters 9-10) addresses family diversity in EU law and its interaction with the European Convention on Human Rights (ECHR). In Chapter 9, Geoffrey Willems analyses the legal recognition and protection of same-sex families and how EU law and the European Court of Human Rights (ECtHR) reinforce each other in offering rights to same-sex couples. Alice Margaria in Chapter 10 critiques the CJEU’s handling of surrogacy, particularly in how legal motherhood remains tied to gestation and birth, creating legal imbalances for intended mothers.

Part IV (Chapters 11-12) examines how EU law responds to family crises. Chapter 11 by Ruth Lamont discusses how EU private international family law rules address cross-border child protection issues, highlighting challenges in ensuring child welfare across member states with differing legal frameworks. Nausica Palazzo’s Chapter 12 focuses on the ideological use of family concepts in the culture wars in countries like Poland and Hungary, where illiberal actors have attempted to influence EU family law.

The volume concludes with an Epilogue by Jens M. Scherpe, reflecting on how traditional divides in family law between northern and southern Europe have evolved, especially in the context of same-sex relationships. Scherpe concludes by expressing hope that tensions regarding family definitions across Europe can eventually be harmonised, leading to a more unified understanding of family within EU law.

Overall, the volume presents an updated, interdisciplinary approach, drawing on various legal fields such as EU law, migration law, human rights, comparative family law, and social anthropology. Its aim is to foster dialogue around the definition and significance of the family in EU law, though it does not attempt to provide a definitive answer.