Orden público europeo en Derecho de familia

Abstract

Recent judgments by the Court of Justice of the European Union and the European Court of Human Rights suggest the existence of a European public order in family law, common to all the countries of the Union. The principles and rights recognized in the TFEU, in the ECHR and in the Charter of Fundamental Rights of the EU would make up, although not exclusively, the content of this European public order. Judicial pronouncements are highlighting the contradiction that sometimes exists between the European public order and the international public order of the member states. This incompatibility needs to be resolved in order to allow the principles that form part of each of them to coexist in the same legal system. There are two ways of solving this situation: recognition of the situation created abroad or attenuated international public policy. Although it is important to provide answers in this sense, it is more important to focus on the contradictory situation itself and ask how an institution created in one Member State can violate the public order of another country of the Union, when all the Member States have the same European principles in their legal systems that constitute the European public order, principles that, moreover, must be respected and observed by national legislation.