This document summarizes recent case law from the Court of Justice of the European Union (CJEU) and discusses aspects of logic and argumentation. It explores how private international law concepts can come before the CJEU both directly and indirectly. Specifically, it examines how issues related to international family law and migration law have intersected in CJEU judgments and opinions. It also analyzes the reasoning and deductions made in certain cases, noting the importance of consistency and considering fundamental rights. The document cautions that private international law concepts can take various forms and emerge in different contexts, with implications for individuals that deserve careful consideration by the CJEU.

1. CJEU case-law
A few observations on recent CJEU case law with attention for some aspects of
logic and argumentation theory
Münster
29 April 2023
Veerle Van Den Eeckhout
Any view expressed in this document is the personal opinion of the author
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2. I. Introduction
• International family law, recently:
• « a lot » : might present broad panorama
• this presentation: just selection, certainly not a full review, rather
explorative regarding some issues
• Presentation:
• focused and broad, zoom in and out, Cfr. a previous presentation
• broad in sense also looking outside international family law/outside “pure”
interpretation of PIL-regulations itself
• With attention some aspects of methodology, reasoning, deductions and
« consistency » 2

3. • Image hereby private international law: Mercury – Quecksilber
• (chemical element, metal)
• Mercury: might take various forms (sometimes difficult to get a
« grip » on it/touch « essence »)
• Might separate/come back together (again) (and changing when
« heated » « hot»)
• Disclaimer - me myself at the Court
At Court: at Research and Documentation Directorate
• Work includes preliminary analyses of incoming cases - special attention
Article 53 and 99 Rules of Procedure of the Court of Justice:
• issues jurisdiction/admissibility article 53 (Orders) – cfr. some notes hereafter
• /Orders article 99 (issues acte clair, acte éclairé etc. article 99, « already supposed
to be known » , might then be answer by way of order instead of by judgment)
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4. art. 53 Rules of Procedure
• see e.eg. issue « cross-border ».
• How fill in?
• (and:
• indications to be found in (interpretation of) other regulations?
• – issues consistency/deductions/…?)
• CJEU case law
• Quite recently: Parking and Interplastics (joined cases C-267/19 and C-323/19), remarkable:
• Reference in nr. 34 judgment discussing “cross-border”, Brussels 1 bis,
• to EPO-Regulation 1896/2006 - CJEU Bondora (C-453/18 and C-494/14) on EPO,
• and said nr. 35 “harmonized interpretation” – surprising!? (“cross-border” in EPO-
regulation in fact quite limited, narrow) 4

5. Reference to EPO-regulation in Parking and
Interplastics: has raised some questions. But: A
non-issue?
• Looking at case law Summer 2022:
• Parking and Interplastics not to be understood tending to give a
« harmonized interpretation » to notion of « cross-border » in sense
should be the same allover?
• And certainly not in sense of limiting the notion for Brussels 1 bis (in
sense needed at least one of parties domiciled abroad), rather as a
possibility next to other possibilities of « cross-border » (alternatives) ?
• See considerations Court in C-274/21 (nr. 57) and C-399/21 (nr. 28)?
• Storm in a glass of water?
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6. Anyhow, interesting:
• Anyhow, interesting regarding foregoing:
• reasoning, issue of terms, issue of particularity/not certain regulations
•
• issue Possibility to « transpose » or not, issues « coherence »
• cfr. issues uniformity/particularity notions in various regulations international
family law?
• More in general, Parking and Interplastics: include reasonings such as « If
(requirement fulfilled/…) in one context, also certainly requirement fulfilled/… in other
context »?
• = some remarks at occasion of « cross-border » in context article 53 Rules, reasonings
such as Parking and Interplastics
• Hereafter: looking at stage after, beyond possible issues article 53 – but continuing
looking for issues of methodology etc. 6

7. Questions to the Court (regarding interpretation PIL-
regulations) about what « not yet known » - PIL thereby
coming in classic way to the Court (« direct »)
• Some recent judgments 2022 (given opportunity) – Cour responding by judgment:
- C-501/20 « residual grounds jurisdiction » and « forum necessitatis »
note: forum necessitatis: currently discussions in context revision Brussels 1 bis (especially
regarding corporate social responsibility), discussions sometimes referring to « forum necessitatis » in
international family law
- C-522/20, Brussels II bis, « non-discrimination » nationality
- C-646/20, recognition extrajudicial divorce Brussels II bis
- = about interpreting PIL-regulations, “direct” way to Court – just some recent
cases.
Literature analyzing PIL-notions in some of these cases in a broader way (between
regulations international family law, and also including PIL outside international
family law)
- Hereafter, myself: presenting some aspects of PIL “in a broader way” by looking
at “indirect” ways PIL comes to the Court:
- addressing (potential) PIL-issues to Court
- /addressing issues to Court with potential PIL-consequences. 7

8. PIL may come to Court in many shapes and forms
« Indirect » - hereafter: several « ways »
• A. First « way » Indirect
• - e.g. Coman (C-673/16), SM (C-129/18), Pancharevo (C-490/20)
• - previously also e.g. law of names Garcia Avello etc.
• Issues about
• what might be deduced/should or might follow if decided in some
way in one context …
• – including issues of reversal discrimination etc.,
• including issues about deductions for aspects international family
law (in its procedural aspects/aspects applicable law)/substantive family
law,
• cfr. if in context rules on free movement – international family
law/family law – possible domino-effects etc. 8

9. • PIL, might say (cfr. « all roads lead to Rome »):
• « Different roads leading to Luxembourg »/
• « Different roads leaving from Luxembourg »
• Cfr. in that perspective a few remarks hereafter, when describing « second,
another way indirect »,
• regarding PIL and migration law in the broad sense
• (not purely free movement of EU-citizens, European citizenship)
• – see, as an illustration/step-up, case C-230/21 (family reunification)
• (only highlighting some aspects)
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10. B. Indirect, otherwise
• Indirect (in context other provisions/instruments) cfr. case/opinon/judgment C-230/21 –,
« married minor refugee »
• Case: Directive 2003/86/EC – Article 2(f) – Article 10(3)(a) – Concept of ‘unaccompanied minor’ –
Right to family reunification – Refugee minor who is married at the time of her entry into the
territory of a Member State – Child marriage not recognised in that Member State – Cohabitation
with the spouse lawfully residing in that Member State
• Mother of minor refugee, family reunification – minor refugee “married”?
• (Family reunification, issues, previously/other: (regarding requirements/potential obstacles,
(in)direct ways restriction family reunification and Court in this regard), i.a.:
• cases about date of reference « minority » in various contexts, configurations family reunification, several
provisions (cfr. judgments and orders including C-550/16, C-273/20 and C-355/20, C-133/19 e.a., C-279/20, C-
191/22 (radiation), C-768/19, currently pending case C-560/20),
cfr. also case C-338/13 (married partners))
• here: if being married is to be considered as an obstacle – and if so, how to assess if
married) 10

11. C-230/21
• Directive different parts:
• nothing mentioned about requirement unmarried
versus
• /mentioned should be « unmarried »
• Court, here: not relevant if married or not – thus no need responding to
second question
• Said no relevance married/unmarried. No relevance “marriage”,
überhaupt no relevance “marriage” - no subsequent considerations
“PIL”.
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12. • Opinion interesting
• Opinion AG Szpunar: “broader”
• Opinion C-230/21, AG:
• not relevant marriage,
• but if Court would decide that relevant: discussing that situation, confronted
with situation non-recognition of marriage by Member State (nr. 51 and
following opinion)
• Arguments and considerations
• Interesting: would be « paradoxical situation » (if, while not recognized,
consider married in context of family reunification: see nrs. 58-60 opinion)
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13. • Note: Argumentation, reasoning in opinion C-230/21: «would be « paradoxical
situation » » - present kind of absurdity of situation, practices, if acted in particular way
• « not recognize »/not give effect in one context/ « Recognize » in other context/give effect
in other context
• – both with negative effects regarding claims persons involved:
• see already past, on national level
• e.g. certain practices Member States, previously, e.g. filiation and claims
based on filiation (child allowance, nationality …)
• Sometimes resulting in Deadlock situations
• Might question also from perspective objectives rules, violation fundamental rights …
•
• (Note: well-known quote «If you are parent in one country, you are parent in every
country »/should be parent:
• issue differences perspective one country compared to another and potentially
negative effects thereof for people concerned –
• Sometimes, might be rather: parent/spouse/unmarried/ in one context, area of law, …
compared to other context ) 13

14. C-230/21 and beyond, in broader context
• « beyond »: raises issues: Migration law in broad sense (including nationality
(including issues multiple nationality), social security law …– family law and
international family law
• Are issues Court can also be confronted with, including question if überhaupt
PIL at stake or not, and if at stake, how
• Interplay freedom of movement – international family law
• Can see, observe sometimes what I called « dark side » of the picture
(picture interplay free movement/migration and PIL) when looking at practices
Member States, when about migration and PIL – question if Court goes along
with this
• C-230/21, so: both Court and AG: « marriage » no obstacle, no relevance.
Opinion, in hypothesis that « marriage » would matter for the Court (quod non),
did not go along with attempts « dark side ». 14

15. • Broader context, might present as follows:
• Image previously PIL functioning sometimes as a hinge (way PIL functions - and is
involved or not) might open doors/close doors to rights that are claimed also
outside of area of international family law – e.g. social security claims (e.g. child
allowance), nationality, residence rights … based on family relationship)
• Double track: when about, in context of
• freedom of movement EU-citizens (« family » concepts and European
Citizenship, mobility EU-citizens)
• /other – Third country nationals, migration/asylum, family reunification?
• Blurred lines …
• PIL sometimes as Mercury – taking various forms, going sometimes different
directions
including in being involved/not and the way of emerging, … ? 15

16. III. Concluding
• Said: different roads leading to Luxembourg, direct and indirect.
• Presented some elements that possibly less eye-catching and striking issues
when looking at whole case-law of the Court
• But might also be relevant, for future,
• Also from a methodological point of view
• also as (growing) attention issues consistency, coherence etc.
• Relevance « reasonings » thereby 16

17. • Reasonings …
• Possibly
• not always issue if « same » or « analogy » (issue « transpose ») - not necessarily reasoning in sense « equivalent »
or not),
• but reasoning in sense what might be deduced, if überhaupt something to deduce, if something be deduced in
what sense
• Issue: how reason, what involve in reasoning, what deduce … logics. Cfr.
• Cfr. e.g. « Parking and Interplastics »/ cross-border;
• cfr. « would be paradoxical » opinion in case C-230/21 …
• With reasonings/argumentations such as
• « if there, then (certainly) also here … », « would be paradoxical if … »
• Attention what included/not included as elements reasoning, wideness of field of vision etc.
• (Inclusion/taking into account objectives facilitate family reunification, objective protection best interest child …)
• - Attention: importance inclusion arguments Charter of Fundamental Rights.
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18. So, all in all, Concluding:
• Coming back on image PIL as Mercury from the beginning: PIL what
form(s), might pop up but then take another form/disappear/…, issues
consistency etc.
• Was selective
• « Cherry picking » in selection, but at same time: see possible « dark
side » - interplay free movement/migration and PIL, when looking at,
observing some practices/attempts Member States
• Important how Court « stands » in this (how fit in in system case law,
how argue …), responding to questions
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19. • See also on https://www.slideshare.net/vvde/presentations
• CJEU case-law. A few observations on recent CJEU case law with
attention for some aspects of logic and argumentation theory
(slideshare.net)
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