Family

Law in a Comparative

Perspective

September 2014

Eric Cuevas

The concept of Family in the European Union: a traditionalist or an alternative approach?

Black, white, heterosexual, homosexual, tall, small, chubby or thin; families may be as different as the sum
of the individuals that conform them.
However, when it comes to legislation, the European Union needs to define the concept of Family in
order to protect its citizens and grant them rights and obligations. What is the legal definition of family in
the European Union? And, is it aligned with the reality of European citizens?
The concept of family is critical for society. Families are a group of people united by certain legal
relationships that are protected by the administration. The different forms that this entity may take in a
society will shape it critically. Within the European Union, the status of family will allow citizens to benefit
from specific right of movements, of residence and even economic and social benefits. This is why it is
essential to understand the legal concept of family in the European Union.
Within this context we find definitions of family in several sources: Article 10 of Title III of Regulation
1612/68, the European Convention of Human Rights, the Citizens Directive (2004/58/EC) and Case
Law from the ECJ.
Regulation 1612/68 regulates on Freedom of Movement for Workers within the European Union. This
initial definition regards the nucleus of the family. Following this initial definition, the European Court
of Justice has interpreted the concepts of Spouse and dependent relatives in different ways, giving rise to
other parallel definitions of the legal concept of families.
One of the last definitions provided in EU legislation is the one in the Citizens directive that states the
following in its article 2(2):
Family member means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of
a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in
accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as
defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in
point (b)
Although the definition seems quite precise the terms leave room to interpretation and ambiguity:
What should a direct descendant over 21 proof to be seen as dependent?
When does the rights from a spouse terminate?
What is exactly considered as direct descendant?
These questions are answered by the case law of the ECJ, however its view differs from the one of other
EU institutions such as the European Parliament or the ECtHR.
The European Parliament has been working towards a more flexible definition of the legal concept of
family. As such, they proposed inclusive amendments to Regulation 1612/68/EEC that later took the
form of Directive 2004/38/EC. The same approach was followed in Council Directive 2003/86 on family
reunification rights. Clearly, the European Parliament, together with the ECtHR and the Economic and
Social Committee, have been working together towards the same direction: a modernized, flexible and
inclusive legal definition of the concept of family in the European Union.
The European Court of Human Rights, on the other hand, has focused on the concept of family life to
approach to a definition of family. In the case analyzed, Anayo v. Germany, the Court explores the
importance of biological kingship and their relevance in determining the existence of family life. The
court concludes that a mere biological relation is not sufficient to be considered family, that close family
ties must be present and evidenced. The court also analyses the existence of intended family life and
suggests that when a biological parent has shown interest and commitment to their child and has not been

able to establish contact for reasons non-attributable to him, then family life might be present.
Therefore, the main focus of the ECHR is on the de facto relationship rather than on legal and biological
elements.
On the other side, the ECJ has taken a more conservative approach. Through its case law it has
established a more traditional concept of family. This started to be seen in cases such as, Diatta v Land
Berlin (Case 267/83) and even Netherlands v Reed (Case 59/85) where the ECJ described the term Spouse in a
very conservative way. As defined in Diatta, a couple that gets divorced immediately stop relating to each
other as spouses. Therefore, a spouse that divorced his/her husband/wife will not be entitled to any right
or obligation deriving its previous familial relationship. This situation will not apply in case of mere
separation. Looking again at the definition of Spouse, in Netherlands v Reed, the ECJ has ruled that
unmarried persons living together in a stable relationship (cohabitees) will not be recognized as spouses.
In all those cases the ECJ has followed a conservative and restrictive interpretation of the concept of
spouse and descendant. This has resulted in legal precedents that showcase a traditional family model
composed on a married man and woman carrying out the traditionally recognized roles to male and
female partners. Another example of this can be found in Aboulaye v Renault (Case C-218/98) where the
ECJ ruled on collective agreements and discriminatory family rights regarding male and female partners in
a marriage (giving the exclusively to the female partner a lump sum payment for maternity leave).
A more liberal view was taken by the ECJ in Case Baumbast and R v Secretary of State for the Home Department
(C-413/99) where it established that the concept of descendant should be widely interpreted. As such, the
concept of descendants includes not only descendants from the present relationship but also descendants
from previous relationships (divorced couple). Also recently the ECJ established a broad definition of
dependant in Flora May Reyes v. Migrationsverket on the basis that free movement rules should be interpreted
broadly.
Yet another issue to tackle is the homosexual couples and their role as families in todays society.
Discretion is granted to Member State to regulate on family law and as a consequence, within there is a
wide variety of status granted to these couples in the European Union. Some member States allow same
sex marriage, others recognized civil partnership of a same sex couple granting them almost the same legal
advantages as married couples, but yet others do not recognize these couple as legal families.
The ECJ still holds a conservative view in this field. One of the most important precedents was set in
Case C-122/99P and C-125/99P D and Sweden v Council, were the ECJ recognized that in the present state of
the law within the Community, stable relationships between two person of the same sex are not regarded as equivalent to
marriages or stable relationships outside marriage between persons of opposite sex.

FLORA MAY REYES V. MIGRATIONSVERKET

Summary:
On the clarification of the circumstances under which a family member of an EU citizen who moves to
another Member State can be considered as dependant within the meaning of the Directive on the free
movement of EU citizens (Directive 2004/38)
Facts
Ms. Reyes, a 23 year old Philippine national who had always lived in the Philippines, wanted to join her
mother dual citizen of Germany and Philippines- in Sweden. Therefore, she applied for a residence
permit in Sweden as a dependant family member of her mother and her mothers Norwegian partner who afterwards married her mother. Ms. Reyes had undertaken training involving work experience after
qualifying as a nurse in the Philippines but she was still unable to find a job in her home country.
Her application was rejected by the Migrationsverket (the Swedish immigration authority) on the grounds
that Ms. Reyes could not show that the money she was receiving from both her mother and her stepfather was used to satisfy her basic needs - on the form of board and lodging and access to healthcare in
the Philippines. Additionally, she could not show how her home countrys social insurance and security
system could cover a citizen in her situation.
Ms. Reyes appealed against the decision of the Migrationsverket to the Gothenburg Administrative Court,
which dismissed the appeal. The Court concluded that even if it was evident that Ms.Reyes basic needs
were covered by her mother and step-father, her situation could not be regarded as being such that she
could not, without material support from her mother and stepfather support herself in her country of
origin.
Grounds of law
The case reached the Stockholm Immigration Court of Appeal, which decided to request for a preliminary
ruling to the CJEU and submit the following questions to clarify the definition of a dependant under
article 2(2)c of the citizens Directive (Directive 2004/38):
(a) whether the person concerned had to show that he or she had tried to obtain employment or support
in the home country but that it was not possible, and
(b) whether a person who had a good chance of finding a job in the host country could still be considered
a dependant of the EU citizen who was living there.
The judgment
On the first question the Court pointed out that the fact that a family member receives regularly income is
sufficient to prove a situation of dependance and that there is no requirement to show that the dependant
family member tried unsuccessfully to find a job in the country of origin. This is because, reiterating the
prior case-law of the Court, free movement rules, like those included in Directive 2004/38, must be
interpreted broadly. The Court also underlined that the requirement of proving the attempts to find a job
or social assistance would make it excessively difficult for the descendent to obtain the right of residence
On the second question, the Court shed the light on the fact that dependance must exist in the country
from which the family member comes. For this reason, the prospect of finding a job in the host Member
State does not have to affect the interpretation of the condition of dependency.

DIATTA V LAND BERLIN CASE 267/83 [1985] ECR 567

Summary:
This case dates back in 1985, it is one of the most important precedents established by the ECJ on the
legal definition of Spouse. The ECJ ruled that divorced citizens are not to be regarded as part of the
family of their ex-wife/husband and thus cannot benefit from the rights attributed to spouses.
Facts:
Diatta is a Senegalese citizen living in Berlin for over a decade. She contracted marriage with a French
citizen and both lived in a shared apartment in Berlin. Diatta had worked in Berlin during the past decades
and is an integrated part of its society. Diatta and her husband separate and later decide to divorce while
living in different houses. After this situation happened, Diattas residence permit expired. She then
sought its renewal at the police services in Berlin who denied its residence permit renewal on the basis that
she was not part of the family of a Member State citizen. Diatta appealed the decision at many instances,
and finally got to the ECJ as a preliminary ruling reference.
Grounds of Law:
The preliminary ruling reference was made on the grounds of Articles 10 and 11 of Regulation no
1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers within the
Community. These articles define the following:
TITLE III Workers' families
Article 10
1. The following shall, irrespective of their nationality, have the right to install themselves
with a worker who is a national of one Member State and who is employed in the
territory of another Member State:
o (a) his spouse and their descendants who are under the age of 21 years or are
dependants;
o (b) dependent relatives in the ascending line of the worker and his spouse.
Diatta wanted to rely on Article 10 paragraph 1 in order to be still considered as a spouse despite
her separation and divorce from her husband.
The German police department refused to grant her the residency permit because they believe
after being divorced from a EU citizens she could not be consider anymore a member of his
family and neither could she benefit form a status of spouse.
Implications for the definition of Spouse:
The court ruled in favour of the German authorities setting up a new precedent for the definition of
spouse which excludes individuals that have been granted a divorce.
The court also set a precedent stating that two married people need not to share the same apartment in
order to be considered spouses.

ANAYO v. GERMANY
Factual background:
Frank Eze Anayo, Nigerian national seeking asylum in Germany, maintained a two-year relationship with
Mrs B, who was married to Mr B. The relationship was serious and Mrs B. had considered divorce.
Mrs B became pregnant of the applicant and in December 2005, after the relationship had ended, Mrs B
gave birth to twins. Mr and Mrs B decided to bring up the twins together and refused to involve the
applicant.
Mr. Anayo commenced proceedings in order to be granted contact with the twins. His application was
denied on the grounds that there had never been family bonds between the applicant and his children
Once domestic remedies were exhausted, the applicant referred the case to the ECHR, alleging that the
decision of the German Court violated the right of respect towards his family life embedded in Article 8
of the Convention.
Legal reasoning:
The Court reiterates that the notion of family life comprises not only marriage-based relationships but
also de facto family ties where the parties are living together out of wedlock. As stated in the Courts
jurisprudence a child born out of such relationship is ipso jure part of the family unit. However, a mere
biological relation between a parent and a child is not sufficient to amount to family life; a close
personal relationship and cohabitation are required to create de facto family ties. In the present case, the
applicant was not in a relationship with the natural mother and had not established contact with the twins.
The Court then proceeds to explore the notion of intended family life (Pini and Others v. Romania; Nylund
v. Finland), suggesting that it is possible to extend the notion of family life to situations where a
relationship between the natural parent and the child and has not yet developed due to factors not
attributable to the biological parent.
Since Mr and Mrs B, aided by the German Courts, impeded the applicant from maintaining contact with
his children, it is not possible to attribute to the applicant the lack of contact. The Court then must
explore the interest and commitment of the father to the children in order to evaluate the existence of
intended family life. The applicant had expressed his wish to have contact with the twins even before
their birth and repeatedly restated it afterwards. The Court considers this conduct sufficient to
demonstrate the applicants interest. In addition, the Court notes that the twins emanate from a
consolidated relationship. Considering the above, the Court regards the applicants intended relationship
with his biological children as family life.
The Court then examines whether the interference with the applicants family life is justified. To do so it
analyses if it was necessary in a democratic society examining if the reasons behind the interference are
relevant and sufficient. In the present case, the German Court of Appeal had not regarded if contact
between the applicant and the twins would be in the best interest of the latter, but had merely analysed the
applicants situation; therefore the legal analysis had not been sufficiently exhaustive.
Conclusion
The case explores how the definition of family life does not solely depend on biological factors but
also encompasses de facto family ties. Therefore, family life depends on the actual circumstances of a
relationship, allowing the Court to depart, when adequate, from a traditionalist approach to family.