The paper is based on the hypothesis that the principle of mutual recognition, which is the cornerstone of the functioning of the EU internal market, may apply to recognition in one EU Member State the family law relationships arisen in another EU Member State. The principle of mutual recognition was developed by the Court of Justice of the EU (CJEU) as a response to the lack of uniform provisions in the substantive law of the Member States. In this context, it could potentially find wide application in relation to family law relationships, as substantive family law cannot be unified nor harmonized within the EU mainly due to the lack of EU competence in this area.

At the same time, the lack of recognition of the family law relationships entails different treatment of the same legal situations in different Member States. This creates legal uncertainty on the part of individuals and may effectively prevent them from exercising the freedoms guaranteed in the Treaties.

The EU plans to introduce provisions on the recognition of the legal effects of civil status documents into secondary law show that this problem is visible, and solutions are being sought. Although, those plans have not been implemented so far, it seems, however, that the method of “small steps” might be adopted, i.e. instead of adopting general and abstract norms of secondary law, the EU mechanism will be gradually specified in the judgments of the CJEU, which will concern specific issues related to recognizing family law relationships (e.g. Case C-673/16 Coman). Such a solution would fit in the way in which the mutual trust principle was developed in the EU in relation to other issues, such as standards of goods, recognition of diplomas and professional qualifications, recognition of the legal personality of companies and recognition of names and surnames of natural persons.

The paper is focused on three main scientific questions: (1) Is the EU recognition mechanism necessary for the proper functioning of the EU internal market? (2) To what extend the EU recognition mechanism may be useful in relation to family law relationships arisen in another EU Member State? (3) What effect may the EU recognition mechanism have on the substantive family law of the EU Member States?

My paper examines how the Court of Justice of the European Union expands EU competences through the interpretation of EU internal market law.

Much has been written about the EU’s so-called ‘competence creep’, describing the extension of EU competence to regulate the internal market into the areas in which the EU has not been granted explicit competence to act, such as public health, social security, and others. That discussion criticizes the EU legislature for failure to respect the limits of EU competence and the Court for failure to police those limits. Yet it largely overlooks a related, and equally important, question: does the Court itself observe the limits of EU competence in the interpretation of the rules of the internal market laid down in the Treaties?

It is an important question to address for two reasons. First, because the contours of the EU’s internal market are shaped by the judicial interpretation of the rules of the internal market just as much, if not more, as they are by the legislative harmonisation undertaken in the name of the functioning of the internal market. Second, the judicial interpretation of EU internal market rules has significant implications for the scope of the autonomy of the Member States, thereby shaping the division of competences in the EU.

My paper examines the phenomenon of competence creep in the judicial interpretation of free movement law. It does so through a two-fold inquiry: (i) it conducts a comparative analysis of the Court’s free movement case law in three areas of national policy that are constitutionally sensitive from the EU law point of view – healthcare, education and collective labour law; and (ii) examines the legitimacy of that case law in light of the principles that govern the scope and exercise of EU competences – the principles of conferral, subsidiarity and proportionality.

The paper thus exposes the scale of the problem of the EU’s competence creep and demonstrates that the exercise by the Court of its interpretative authority might be its dominant cause.

Since judicial cooperation in civil matters was officially included within Justice and Home Affairs at EU level in the 1990s, the European Union (EU) has developed a body of private international law in family matters. It includes choice of court and enforcement in the fields of divorce, matrimonial property, maintenance obligations and cross-border rights of access to children.

Civil justice cooperation was also envisaged in its external dimension in the 2000s. The Council published a general framework for setting out aspects in civil justice cooperation in the framework of the 2005 Strategy for the External Dimension in Justice and Home Affairs. And in what appeared to be an emerging external policy in these matters, the EU became a full member of the Hague Conference on Private International law (HCCH) and promoted accession to Hague Conventions in family matters. Furthermore, not only is the EU committed to work towards convergence of private international law by virtue of its membership of the HCCH, it also has exclusive external competence in private international law on family matters in areas in which it has exercised internal competence (Cremona 2016; Franzina 2016). And in a world in which people move, enter relationships and have families cross-border, not only inside the EU27, there is an external dimension to the impact on EU citizens. However since the 2010s and the start of a decade characterised by ‘polycrisis’, civil justice cooperation is framed more defensively, in terms of security and protection. Family law matters in particular have lost in salience both internally and in their external dimension.

Research in the area of external civil justice cooperation in family law matters has exclusively been from a legal perspective (Kuipers 2013; Pataut 2016; Beaumont 2016). This paper adds a political science approach. It looks at the set of factors that account for the rise and fall of the issue on the political agenda over the past three decades, by focusing on processes in which actors form coalitions, how the issue is framed and the role of entrepreneurs. In doing so, it uncovers the inter-institutional dynamics of agenda-setting in the EU in this specific area. It also sheds more light on structural biases inherent in EU policy-making, i.e. why some issues do not have an equal chance to make it on to the political agenda.

Against the backdrop of the centralizing tendencies that became manifest at the level of the European Union at the end of the 1980s, in the context of the Maastricht Treaty negotiations, the impetus for strengthening the principle of subsidiarity came essentially from two directions – those Member States worried by the seemingly endless growth of the Union’s powers and the regions that became alarmed that the centralist drift might lead to a shrinking of their powers. In the end, the principle of subsidiarity was codified in Article 3b of the Treaty of Maastricht and, alongside the principles of attributed powers and proportionality, should have established norms for common action and, at the same time, a less intrusive EU governance.

The previous Commission, led by J.C. Juncker, prioritized the principle of subsidiarity and built a scenario for the future of Europe based on the formula "doing less more efficiently." Nonetheless, it failed to provide the necessary clarity on how to differentiate between areas where the EU was to "do less" by ceasing to act or reducing its engagement, giving Member States the opportunity to intervene, and those mutually agreed, albeit limited in number, areas where the EU would act "more efficiently" by taking a more decisive action.

Given that the EU's governance system is increasingly moving toward what J. Zeitlin defined as an ”experimentalist architecture of decision-making processes” in a growing number of public policy areas, this contribution investigates how the principle of subsidiarity might retain its relevance.