The document discusses recent CJEU case law, focusing on private international law (PIL) and its interpretations within family law contexts. It highlights ongoing issues of jurisdiction, echoing the complexities and variability of PIL, using metaphors like mercury to depict its fluid nature. Key cases, such as C-230/21 regarding family reunification for married minors, illustrate the challenges posed by differing national laws and the need for coherent judicial reasoning in addressing such PIL matters.

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
1

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
• Continuing thereby also, regarding content, on some points of previous presentation:
issues of « consistency », « reasoning »
- this presentation: not only between various PIL-regimes, also regarding PIL itself
(PIL or not in various contexts, which PIL (national PIL of what country/ …)) 2

3. • Image hereby private international law: Mercury - Quecksilber
• 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 » )
• Disclaimer - me myself at the 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) – will start with 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 3

4. art. 53 Rules of Procedure
• when looking broader than, also outside, purely international family law, ongoing issues
here, positioning in broader area, ongoing dynamics
• : see e.eg. issue « cross-border ».
• How fill in? (and: indications to be found in (interpretation of) other regulations? – issues
consistency/deductions/…?)
• « Cross-border » in and after case Parking and Interplastics (joined cases C-267/19 and C-
323/19)
• Parking and Interplastics, 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” 4

5. • Parking and Interplastics (C-267/19 en C-323/19), seemed as if started live
life on its own cfr. case C-280/20, quote retaken from Parking and Interplastics
• later on, Summer 2022: judgments in cases C-274/21 (14 July 2022) and C-
399/21 (8 September 2022, in context article 24, intellectual rights)
• (and currently pending case C-774/22 (cfr. C-108/23) (and also pending case
C-566/22 (forum choice and cross-border) (so, also in various contexts, including
if forum choice))
• (Note: Opinion Szpunar in case C-421/20: « brought together », in another
context, references to both case international family law C-393/18 PPU and
Owusu, in context requirements applicability)
5

6. 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?
6

7. Anyhow, interesting:
• Anyhow, interesting regarding foregoing:
• reasoning, issue of terms, issue of particularity/not certain
regulations, cfr.
• within PIL outside international family law (e.g. Brussels 1 bis versus EPO)
• as well as PIL outside international family law versus International family law
• Possibility to « transpose » or not, issues « coherence » (cfr. quite recent
particular attention in academic literature issues « coherence »)
• cfr. issues uniformity/particularity notions in various regulations
international family law?
• More in general: include reasonings such as « If (requirement fulfilled/…) in
one context, also certainly requirement fulfilled/… in other context »?
• Hereafter: looking at stage after possible issues article – but continuing
looking for issues of methodology etc.
7

8. Questions to the Court (regarding interpretation PIL-
regulations) about what « not yet known » - PIL thereby
coming in classic way to the Court (« direct »)
• Beyond issues jurisdiction/admissibility
• Judgments « direct », « not yet known » (still, Court should be given the opportunity to
answer to a preliminary question: can only « answer » if given opportunity)
• Some recent judgments 2022, looking from this perspective (given opportunity):
- 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, recently (15 November 2022) recognition extrajudicial divorce Brussels
II bis
- = about interpreting PIL-regulations, “direct” way to Court – just some recent
cases. Hereafter: rather “indirect” ways addressing (potential) PIL-issues to
Court/addressing issues to Court with potential PIL-consequences. 8

9. 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) See e.g. on this case
law and « further » (what to deduce from it etc.): cfr. recently Meeusen Functional Recognition of Same-
sex Parenthood for the Benefit of Mobile Union Citizens – Brief Comments on the CJEU’s Pancharevo Judgment – EAPIL
• - previously also e.g. law of names, see also on this jurisprudence « and beyond »
(consequences 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 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.
9

10. • PIL, might say:
• « Different roads leading to Luxembourg »/
• « Different roads leaving from Luxembourg »
• Cfr. a few remarks hereafter, when describing « second way indirect »,
• regarding PIL and migration law in the broad sense
• (not purely free movement of EU-citizens)
• – see, as an illustration/step-up, case C-230/21 (family reunification)
• (focusing hereafter only on some aspects of this case, highlighting just some
aspects) 10

11. B. Indirect, otherwise
• Indirect (in context other provisions/instruments) cfr. case/opinon/judgment C-230/21 –
« Réfugiée mineure mariée », 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
• (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) 11

12. C-230/21
• Directive different parts:
• nothing mentioned about requirement unmarried
versus
• /mentioned should be « unmarried »
• Questions referred for a preliminary ruling
• 1. Should European Union law, in particular Article 2(f) read in conjunction with Article
10(3)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family
reunification be interpreted as meaning that a refugee who is an ‘unaccompanied minor’, and
who resides in a Member State, must be ‘unmarried’ under national law in order to enjoy the
right to family reunification with relatives in the direct ascending line?
• 2. If so, can a refugee minor whose marriage contracted abroad is not recognised for public
policy reasons be regarded as an ‘unaccompanied minor’ within the meaning of Articles 2(f)
and 10(3) of Directive 2003/86/EC?
• Court: 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 considerations “PIL”.
12

13. • Opinion interesting
• Opinion AG Szpunar: “broader”: opinion also stating that no relevance if married or not, not
condition unmarried, but also discussing second question if Court might respond to first
question that relevance married/unmarried
• 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)
• Arguments and considerations
• Interesting: would be « paradoxical situation » (if, while not recognized, consider married in
context of family reunification: see nrs. 58-60 opinion)
• (as an argument of support? Particularly in this kind of situation/particularly if reasoning
from perspective protection against forced marriages?)
• (might wonder: if would have recognized (/certain effects of it): then also not blocking family
reunification? /« positive » element recognition/some effects of it using as « negative » for
family reunification?) 13

14. • Note: Argumentation, reasoning in opinion C-230/21: «would be « paradoxical situation » » - present absurdity of
situation 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 compared to other context
(Cfr. From this perspective issues in PIL such as
“preliminary questions”,
“procedural status of PIL(/rules of some PIL-regimes)” (see on some related aspects, e.g., recently, C-
347/18 (Salvoni) (regarding certain rules of Brussels 1 bis), commented recently by Ho-Dac “Précisions sur l’office du juge
…”, C-645/20 (V A and C A) (Succession regulation and subsidiary jurisdiction), …)
…)
14

15. 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 ». 15

16. • Broader context
• 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 …)
• 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, … ? 16

17. III. Concluding
• Said: different roads leading to Luxembourg, direct and indirect. Possible
issues « at gate »: jurisdiction/admissible? (cfr. also: « already known »?)
Might be orders – but also orders might be relevant
• 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 as (growing) attention issues consistency, coherence etc.
• Relevance « reasonings » thereby 17

18. • 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.
18

19. 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
19

20. CJEU case-law
A few observations on recent CJEU case law with attention for some
aspects of logic and argumentation theory
(Münster – extended version)
Veerle Van Den Eeckhout
Any view expressed in this document is the personal opinion of the author
20

21. Table of content
I. Introduction: selective, explorative, « methodological » issues/ « reasoning »
II. Preliminary questions at the Court and Private International Law: « as such »/otherwise
• II.1 Issues PIL addressed to the Court, presenting itself « directly »
• II.1.A Jurisdiction/Admissibility – Orders
• II.1.B. Judgments, questions about what « not yet supposed to be known already »
(judgments interpreting PIL-regulations)
• II.2. Possible issues PIL popping up, emerging/resulting, presenting itself « indirectly », in context
other provisions and instruments/regimes
• II.2.A. Judgments such as Garcia Avello etc. (compatibility national rules), Coman etc. (in
context EU citizenship, freedom of movement EU-citizens, directive 2004/38, …)
• II.2.B. C-230/21 (cases « such as » C-230/21) (in context « migration law » in broad
sense, directive 2003/86, …)
•
• III. Concluding 21

22. I. Introduction
• International family law, recently:
• « a lot » – see legislative amendment Brussels II bis, see proposal regulation filiation, see many decisions Court
(e.g. succession regulation, maintenance regulation, …): might present broad panorama
• this presentation: just selection (including some possibly, at first sight, less eye-catching issues/cases), certainly
not a full review, rather explorative regarding some issues
• Presentation:
• focused and broad, zoom in and out,
• This contribution: selective, focusing on some aspects
• But at same time broad view: broad in sense also looking outside international family law/“outside pure” PIL itself
• (zoom in and zoom out, thereby explorative)
• cfr. a previous presentation (Harmonized interpretation of regimes of Judicial cooperation in civil…
(slideshare.net)) on issues PIL
• Continuing thereby also, regarding content, on some points of that presentation: issues of « consistency », « reasoning »
- this presentation: not only between various PIL-regimes, also regarding PIL itself
(PIL or not in various contexts, which PIL (national PIL of what country/ …))
22

23. (continuing introduction)
• Image hereby private international law: Mercury
• Mercury: might take various forms (sometimes difficult to get a « grip » on it/touch « essence »)
(cfr. https://njb.nl/blogs/i-could-be-brown-i-could-be-blue-i-could-be-violet-sky-over-een-
paradigmaverschuiving-in-het-internationaal-privaatrecht/ I used image PIL as Mercury)
• Might separate/come back together (again) (and changing when « heated » )
• Research private international law issues and Private International Law as Mercury (quicksilver –
Merkur, Quecksilber)
• In « classic » case law on PIL
• But also « broader », indirect roads to the Court, with issues consistency/interplay (including
potential, hypothetical, future), positioning and interplay
• Therefore some aspects of interplay
• international family law – other aspects/areas private international law
• and private international law – other areas of law
• Issues consistency, reasoning … methodological for Court 23

24. • Disclaimer: Not speaking on behalf of the Court - Any view expressed in this document and the documents
attached is personal opinion
• Note: me myself at the Court at Research and Documentation Directorate
• Work includes « préexamens » (preliminary analyses of incoming cases), including alerts, with special
attention
• « PPU » « PPA », might especially include cases international family law (Brussels II bis/ter) and special
attention issues jurisdiction/admissibility article 53 (Orders)/Orders article 99
• Article 53 and 99 Rules of Procedure of the Court of Justice:
• Issues jurisdiction/admissibility article 53,
• and issues acte clair, acte éclairé etc. article 99, « already known » , might then be answer by way of order
instead of by judgment
• Will start with aspect article 53, issues jurisdiction/admissibility, and ongoing issues here – outside
international family law but also in relation to international family law/popping up there in that regard.
• So, thus, positioning in broader area, ongoing dynamics
24

25. II. « Direct » and « indirect »
• Direct:II.1.
• II.1.A. Jurisdiction/admissibility article 53 Rules of Procedure
• (further, infra, afterwards: « not yet/already known » article 99)
• – but also here, article 53, aspect « already known or not »: in sense understanding
requirement « cross-border » - cross-border nature/international element, aspect(s)
applicability already clarified in context other regulation/… ?)
• Issue if « jurisdiction/admissible » when looking broader than, also outside, purely
international family law: cfr. issue « cross-border ».
• Aspect: requirement based on?? Looking here/comparing back and forth: see e.g. (referred to
in previous analysis in context Brussels 1 bis and its satellites/other regimes):
• see e.g. case C-280/20 (regarding Brussels 1 bis)
• compared with C-393/18 PPU (regarding Brussels II bis), comparison as presented by Pacula in CJEU on the
scope of the Brussels I bis Regulation in the context of a dispute between an employee and a consulate in the
case ZN, C-280/20 – Conflict of Laws
• Requirement « cross-border » based on recitals in preamble regulation and case law
Court/TFUE (article 81)/? 25

26. (Notes)
• (Note: Issue legal basis requirement « cross-border », but also fill in and further
(filling in/further steps: – attention thereby distinguishing different steps to take - attention thereby wordings in opinions/judgments :
« is » / « is in principle » / « may be » /…))
• (Note C-393/18 PPU issues mentioned judgment nr. 29-42, « the jurisdiction of
the Court » (opinion: nr. 22-31) (UK: « two Member States should be involved »
article 8 Brussels II bis (jurisdiction in matters of parental responsibility); Court:
not required – distinction jurisdiction (article 8 Brussels II bis) - recognition))
• (Note article 81 TFUE as legal basis « cross-border » and further deductions/…
from article 81 TFUE cfr. also infra (hyperlink blog on case extrajudicial divorce)
…))
26

27. « cross-border »/applicability
• Foregoing, (coming back to, continuing on) regarding requirement cross-border and its
legal basis: is issue that requirement « cross-border »
• How fill in? (and: indications to be found in (interpretation of) other regulations? –
issues consistency/deductions/…?)
• « Cross-border » in and after case Parking and Interplastics (joined cases C-267/19 and
C-323/19): see previous PowerPoint (Harmonized interpretation of regimes of Judicial
cooperation in civil… (slideshare.net)) (including also issues Charter)
• Parking and Interplastics, remarkable:
• Reference in nr. 34 judgment discussing “cross-border”, Brussels 1 bis, to EPO-
Regulation/CJEU Bondora (C-453/18 and C-494/14) on EPO,
• and said nr. 35 “harmonized interpretation” 27

28. • PIL outside international family law, some recent elements regarding
« cross-border »:
• Parking and Interplastics (C-267/19 en C-323/19), seemed as if started
living its own life cfr. case C-280/20, quote retaken from Parking and
Interplastics (although in C-280/20 not plaintiff abroad, other international
elements) – cfr. previous PowerPoint
• later on, Summer 2022: judgments in cases C-274/21 (14 July 2022) and
C-399/21 (8 September 2022, in context article 24, intellectual rights) (both
without opinion)
• (and currently pending case C-774/22 (Touristik; cfr. previously: C-62/22,
radiation (still before: C-317/20) and also pending case C-566/22 (forum choice
and cross-border) (so, also in various contexts, including if forum choice))
• (Note: Opinion Szpunar in case C-421/20: « brought together », in another
context, references to both case international family law C-393/18 PPU and
Owusu, in context requirements applicability)
28

29. 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)? (as said,
no opinions, so not an analysis from an AG, but so apparently thought not
necessary such an analysis/discussion?)
• (cfr. reference EPO and Bondora: no relevance, if looking at criterium of domicile, who of the parties – cfr.
Bondora: might also be plaintiff that domiciled elsewhere than forum?)
• Parking and Interplastics to be read as still also Owusu etc. Brussels 1 bis? One of parties in another
Member State just one of possibilities « cross-border » Brussels 1 bis?
• (Parking and Interplastics itself, in case EPO plaintiff abroad, almost « a fortiori » for Brussels 1 bis – mainly
intended in sense might be broad, various? If (requirement fulfilled/element) in one context, also certainly
requirement fulfilled, element in other context?) 29

30. • So, « harmonized » interpretation regarding issue « cross-border »,
• if would be tended to understand Parking/Interplastics as saying that exactly the
same as EPO/as limiting in context of Brussels 1 bis,
• not to understand that way?
• anyhow, still, ongoing issues « cross-border »/… ? : cfr. preliminary question
case C-774/22, Touristik, pending: regarding article 18 Brussels 1 bis,
referring judge: differences in vision - need/not regarding domicile party
outside forum
(Harmonized interpretation of regimes of Judicial cooperation in civil…
(slideshare.net): always distinguish several steps Brussels 1 bis)
30

31. Anyhow, interesting:
• Anyhow, interesting regarding foregoing:
• reasoning, issue of terms, issue of particularity/not certain regulations, cfr.
• within PIL outside international family law (e.g. Brussels 1 bis versus EPO)
• as well as PIL outside international family law versus International family law
• Possibility to « transpose » or not, issues « coherence » (cfr. quite recent particular
attention in academic literature issues « coherence »)
• here, foregoing: in context « cross-border », jurisdiction/admissibility for
Court, particularly regarding interplay Brussels 1 bis – EPO but might also emerge
otherwise, after stage jurisdiction/admissibility and applicability, at stage
application itself.
• cfr. issues uniformity/particularity notions (such as habitual residence/…?)
in various regulations international family law?
31

32. More in general
• more in general: if legislator not referred to national law and not given
particular definition, and notion already emerging in another
regulation, possibly even already interpreted in that context by Court?
• Cfr. issues methodology Court: looking at « libellé, contexte et
objectif » (wording of the provision, context in which it occurs,
objectives pursued by the rules of which it is part), « consistent »
interpretation …
• include reasonings such as « If (requirement fulfilled/…) in one
context, also certainly requirement fulfilled/… in other context »?
• Hereafter: « beyond » issues jurisdiction/admissibility, stage after
32

33. II.1.B. Questions to the Court (regarding
interpretation PIL-regulations) about what « not yet
known »
• Beyond issues jurisdiction/admissibility
• If jurisdiction/admissible: Court might still answer by Order (if already clear, already
known, including « acte éclairé »)
• Judgments « direct », « not yet known » (still, Court should be given the opportunity
to answer to a preliminary question: can only « answer » if given opportunity)
• Some recent judgments 2022, looking from this perspective (given opportunity)
(focusing myself in this presentation mainly on cases « civil status »):
• - 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
33

34. • - C-646/20, recently (15 November 2022) recognition extrajudicial (Italian) divorce
Brussels II bis (afterwards C-304/22 (Spanish divorce), radiation)
• Interesting hereby i.a.: Court on legal basis Brussels II bis in reasoning recognition –
cfr. in blog Pacula
• CJEU on recognition of extrajudicial divorces, case Senatsverwaltung für Inneres und
Sport, C-646/20 – Conflict of Laws :
• “Interestingly, from the methodological standpoint, the Court has already relied on primary law to interpret the Brussels II bis
Regulation and decide on its scope in its judgment in in UD, C-393/18 PPU, para. 38. While the judgment at hand echoes that
approach, it also takes it further. The Treaty provides that the EU ‘shall adopt measures, particularly when necessary for the
proper functioning of the internal market, aimed at ensuring the mutual recognition and enforcement between Member States
of judgments and of decisions in extrajudicial cases’, yet the Court states that the EU ensures, when necessary (and, as we learn
from subsequent paragraphs of the judgment – it does so through the Brussels II bis Regulation) the recognition and
enforcement of extrajudicial decisions. It is only then that the Court mentions other provisions of the Regulation in order to find,
in essence, that the notion of ‘judgment’ shall receive a broad understating, including the decisions adopted extra-judicially.”
• Foregoing, is about interpreting PIL-regulations, “direct” way to Court – just some
recent cases. Hereafter: rather “indirect” ways addressing (potential) PIL-issues to
Court/addressing issues to Court with potential PIL-consequences.
34

35. II.2. « Indirect » - hereafter: two « ways » -
• II.2.A. First « way » Indirect
• - e.g. Coman (C-673/16), SM (C-129/18), Pancharevo (C-490/20) See e.g. on this case
law and « further » (what to deduce from it etc.): cfr. recently Meeusen Functional Recognition of Same-
sex Parenthood for the Benefit of Mobile Union Citizens – Brief Comments on the CJEU’s Pancharevo Judgment – EAPIL
• (Meeusen: “it is also noteworthy that, in paragraph 57, the Court does not refer (solely) to the right of the Union citizen to move and reside freely, but more widely to ‘the exercise of the rights which that child derives from
EU law’. The Court, which used similar wording in Coman, does not elaborate on this, and the question therefore remains to what extent the aforementioned ‘functional’ approach will remain tenable in the future. Will it
really be possible for Romania, in the wake of Coman, to limit the effects of the recognition of the marriage to the residence status of Coman’s American husband Hamilton? Will this couple not want to (and be allowed to?)
invoke their marriage status, which is recognised for the purposes of residence, for other legal purposes in Romania as well – tax, filiation, relational aspects of property, inheritance law, etc. – on the grounds that a refusal to
do so also infringes the right to freedom of movement and residence and/or the right to private and family life guaranteed by the Charter? And can the same happen in the aftermath of Pancharevo, where, moreover, the
rights of the child, protected by Article 24 of the Charter, are at stake? Will the impact of EU law on the recognition of parentage effectively be limited to the provision of an identity document and the recognition of the
foreign birth certificate for the purpose of exercising the right to freedom of movement? In fact, even before Pancharevo, the Commission had already planned a legislative initiative in 2022, based on Article 81(3) TFEU,
aimed at the mutual recognition of parenthood between Member States in accordance with the motto stated by Commission President von der Leyen in her ‘State of the Union’ of 16 September 2020: ‘If you are parent in
one country, you are parent in every country’.”)
• - previously also e.g. law of names, see also on this jurisprudence « and beyond »
(consequences etc.) Choice and regulatory competition - Rules on choice of law and forum
(slideshare.net))
• 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 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.
35

36. • PIL, might say:
• « Different roads leading to Luxembourg »/
• « Different roads leaving from Luxembourg »
• Cfr. a few remarks hereafter, when describing « second way indirect »,
• regarding PIL and migration law in the broad sense
• (not purely free movement of EU-citizens)
• – see, as an illustration/step-up, case C-230/21 (family reunification)
• (focusing hereafter only on some aspects of this case, highlighting just some aspects)
36

37. II.2.B. Indirect
• II.2.B. Indirect (in context other provisions/instruments) cfr. case/opinon/judgment C-
230/21 – « Réfugiée mineure mariée », 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
• (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, grande chambre),
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) 37

38. C-230/21
• Directive different parts:
• nothing mentioned about requirement unmarried
versus
• /mentioned should be « unmarried »
• Distinguish
• situation here – i.e. reunification of family members with minor (regarding whom question if
minor should be unmarried) (article 10 paragraph 3 a), unaccompanied minor article 2 f))
• situation reunification of minor (requirement that minor should be unmarried) with family
member ? (article 4 paragraphe 1 : minor children of person who gives right to family reunification,
rule that minor should be unmarried, see article 4 paragraph 1 second alinea)
• (note case Noorzia C-338/13: article 4 paragraphe 5 and article 4 paragraphe 1 a) about spouse)
• (Belgian state: compares situation at stake with article 4 paragraphe 1 regarding minor children of
person giving right to family reunification, rule and condition there that minor should be unmarried)
38

39. • Questions referred for a preliminary ruling
• 1. Should European Union law, in particular Article 2(f) read in conjunction with Article 10(3)(a) of Council Directive
2003/86/EC of 22 September 2003 on the right to family reunification be interpreted as meaning that a refugee who is
an ‘unaccompanied minor’, and who resides in a Member State, must be ‘unmarried’ under national law in order to
enjoy the right to family reunification with relatives in the direct ascending line?
• 2. If so, can a refugee minor whose marriage contracted abroad is not recognised for public policy reasons be regarded
as an ‘unaccompanied minor’ within the meaning of Articles 2(f) and 10(3) of Directive 2003/86/EC?
• Court: not relevant if married or not – thus no need responding to second question
• Regarding first question (relevance/not « married », interpretation provision):
• “26 It should be recalled at the outset that it follows from the settled case-law of the Court that, in interpreting a
provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the
objectives pursued by the rules of which it is part”
Reference to Charter of Fundamental Rights (nr. 47 opinion, « teleological interpretation », see also judgment ),
objective of the Directive, protection child - child marriages
• (Court regarding differences with other rules in directive: « not comparable situations » - opinion nr. 38: « An analogy cannot
(therefore) be drawn between the two sets of rules since the logic behind them is different »)
• Said no relevance married/unmarried. No relevance “marriage”, überhaupt no relevance “marriage” - no
considerations “PIL”.
Court: “an unaccompanied refugee minor residing in a Member State does not have to be unmarried in order to acquire the status of
sponsor for the purposes of family reunification with his or her first-degree relatives in the direct ascending line.”
• Anyhow case interesting - question if PIL comes forward, shows up, and if so how – (in connection to/in interplay
with/)in context of other areas of law (in casu: family reunification, migration law), in particular when concept of family
member, family law; but so Court regarding case C-230/21: no relevance “marriage”. Cfr. Also opinion AG 39

40. • Opinion interesting
• Opinion AG Szpunar: “broader”: opinion also stating that no relevance if married or not, not condition unmarried, but also
discussing second question if Court might respond to first question that relevance married/unmarried
• Opinion C-230/21, AG:
• not relevant marriage (cfr. nr. 25 and following, regarding first question),
• Opinion “25.It follows from the Court’s settled case-law that a provision of EU law must be interpreted autonomously and uniformly considering
not only its wording but also its context and the objectives of the legislation of which it forms part.
• 26. In my view, both a literal interpretation and a teleological/systemic interpretation of those two provisions of Directive 2003/86 require that
that question be answered in the negative, for the reasons which I will now set out.”
• 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 « 52. Since I am of the view that the first question referred for a preliminary ruling should be answered in the negative, there is
therefore no need to answer the second question referred for a preliminary ruling. For the sake of completeness, and in the event that the
Court does not agree with my analysis of the first question, I will however consider the second question, working on the assumption that the
concept of ‘unaccompanied minor’, within the meaning of Articles 2(f) and 10(3) of Directive 2003/86, requires the minor to be unmarried.”
• (Nr. 53: about autonomous/not)
• Arguments and considerations, including
• “53. Directive 2003/86 does not define the concept of ‘marriage’. However, it cannot be inferred from that fact, in my view,
that that concept can be regarded as an autonomous concept of EU law. Not only does EU law not appear to me to provide,
as it currently stands, sufficient information vis-à-vis the definition of ‘marriage’, but it would also be difficult to accept the
determination of whether or not a marriage exists, within the meaning of the provisions of that directive, falling within the
exclusive competence of the European Union. On the contrary, I believe that, generally speaking, an assessment of the
personal situations of the individuals covered by that directive, such as their parentage and marital ties, cannot be made
independently of the law applicable to those situations.
• 54.Accordingly, in my view, the lack of a definition of the concept of ‘marriage’ shows that the EU legislature intended to
leave a certain margin of discretion to the Member States in their understanding of that concept, subject to the requirement
not to impair the effectiveness of EU law and, therefore, the objectives pursued by Directive 2003/86.
40

41. • Interesting: would be « paradoxical situation » (if, while not recognized,
consider married in context of family reunification: see nrs. 58-60 opinion)
• 58.A Member State’s refusal to recognise a marriage involving a minor for public policy reasons whilst accepting that that marriage is effective as regards the
right to family reunification would, in my view, be contrary both to the objective of family reunification and that of the prevention of forced marriages.
• 59.Such a solution would mean that the State could deny that minor the right to family reunification with his or her ascendant relatives and refrain from
protecting that minor from a marriage which that Member State itself accepts as being contrary to public policy.
• 60.The minor would then be in a paradoxical situation in which his or her marriage could not have any legal effect in the territory of the Member State, whilst
increasing his or her dependence on the unrecognised spouse, since the minor would be unable to enjoy the right to family reunification with his or her
ascendant relatives”
• (as an argument of support? Particularly in this kind of situation/particularly if
reasoning from perspective protection against forced marriages?)
• (might wonder: if would have recognized (/certain effects of it): then also not
blocking family reunification? /« positive » element recognition/some effects
of it using as « negative » for family reunification?)
• (remind supra, in context first question: Reference to Charter of Fundamental
Rights (nr. 47 opinion, « teleological interpretation », see also judgment ),
objective of the Directive, protection child - child marriages – cfr. e.g. nr. 55
opinion)
41

42. • Note: Argumentation, reasoning in opinion C-230/21: «would be « paradoxical situation » » - present absurdity of situation
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. Netherlands, previously, filiation and claims based on filiation (child allowance, nationality …) see e.g. De
vermaatschappelijking van het Internationaal Privaatrecht. Ontwikkelingen aan het begin van de 21e eeuw (The Socialization of Private International Law. Developments at the Beginning of the 21 Century and Uw kinderen zijn uw kinderen niet ... in de
zin van artikel 7 AKW (Your Children are Not Your Children ... Within the Meaning of Article 7 Child Benefit Act) by Veerle Van Den Eeckhout :: SSRN
• See also Internationaal Privaatrecht: een discipline in de luwte of in de branding van heftige juridisch-maatschappelijke debatten? (Private International Law: A Discipline Out of the Wind or in the Surf of Fierce Legal-Social Debates?) by Veerle Van Den
Eeckhout :: SSRN
• 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 compared to other context
(Cfr. From this perspective issues in PIL such as
“preliminary questions”,
“procedural status of PIL(/rules of some PIL-regimes)” (see on some related aspects, e.g., recently, C-347/18 (Salvoni) (regarding
certain rules of Brussels 1 bis), commented recently by Ho-Dac “Précisions sur l’office du juge …”, C-645/20 (V A and C A) (Succession regulation and
subsidiary jurisdiction), …)
…) 42

43. C-230/21 and beyond, in broader context
• « beyond »: raises issues (supra: issues « minority », moment to assess. Besides:)
• Migration law in broad sense (including nationality (including issues multiple nationality), social security law …
(including then e.g. also cases such as C-179/92 (Mesbah), C-336/94 (Dafeki), C-102/98 (Kocak and örs) etc.)) …– family law and international
family law, enabling/switching on PIL or not and how (how enact PIL, how apply PIL, ignoring/not PIL when
confronted with « family » concepts …)
• Issue sometimes: PIL but empty shell (« married » but no claims …)
• Think should sometimes mainly « keep in honour » PIL - PIL as oriented towards recognition etc., both in
context within EU as also broader – not instrumentalizing PIL for restrictive migration policy, (cfr. previous
publications, i.a. Internationaal Privaatrecht en migratierecht. De evolutie van een tweesporenbeleid (Private International
Law and Migration Law. The Evolution of a Two-Track Policy) by Veerle Van Den Eeckhout :: SSRN and De
vermaatschappelijking van het Internationaal Privaatrecht. Ontwikkelingen aan het begin van de 21e Eeuw (The Socialization
of Private International Law. Developments at the Beginning of the 21th Century) by Veerle Van Den Eeckhout :: SSRN)
• 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 ». 43

44. • Broader context, previous remarks in this context
• 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 …)
• 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?
(cfr. e.g. The Instrumentalisation of Private International Law: Quo Vadis? Rethinking the 'Neutrality' of Private International Law In an Era of Globalisation and Europeanisation of
Private International Law by Veerle Van Den Eeckhout :: SSRN , footnote 29 cfr. also possible double track in some other areas? e.g. Navigating Through Article 6 Rome
Convention C.Q. Article 8 Rome I Regulation: Possibilities to Determine the Applicable Law on Employment Contracts - An Analysis from the Perspective of the
Significance for International Labour Law of the Case Intercontainer Interfrigo (C-133/08) by Veerle Van Den Eeckhout :: SSRN , matrix. Cfr. also the image of the potential
« double face »/Janus head of the European interference in PIL I used in earlier publications and presentations)
• Blurred lines …
See also Internationaal Privaatrecht en migratierecht. De evolutie van een tweesporenbeleid (Private International Law and Migration Law. The Evolution of a
Two-Track Policy) or Enkele vragen naar aanleiding van de preadviezen over Europees Internationaal Familierecht (Some Questions Following the Presentations on European
International Family Law) by Veerle Van Den Eeckhout :: SSRN
• PIL sometimes as Mercury – taking various forms, going sometimes different directions
including in being involved/not and the way of emerging, … ? 44

45. III. Concluding
• Said: different roads leading to Luxembourg, direct and indirect. Possible issues « at
gate »: jurisdiction/admissible? (cfr. also: « already known »?) Might be orders – but also
orders might be relevant
• 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 as (growing) attention issues consistency, coherence etc.
• Relevance « reasonings » thereby
45

46. • 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 … »
46

47. • Attention thereby if argument used as
• the argument/
• additional argument « of support »
• Attention connecting words, transitions, indicators in and between sentences, in text
• Attention what included/not included as elements reasoning, wideness of field of vision etc.
(mathematical/not (purely) mathematical, but relevance anyhow of what include/not when
reasoning and arguing. Challenges, chances, risks … Issues form of reasoning/content etc. )
• (Elements of logic and argumentation theory relevant in system of case law of the Court!? Might
say is always something to be taken into account, but particularly (also) here? Court built
up/building up further system of case-law … )
• (Inclusion/taking into account objectives facilitate family reunification, objective protection best
interest child …)
• - Attention: importance inclusion arguments Charter of Fundamental Rights.
• (not illustrated with particular notions of international family law, but might explore also)
47

48. • Concluding:
• Paid particular attention to « reasonings »
• 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
48