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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