INTRODUCTION

This contribution on overriding mandatory provisions in EU family law is dedicated to my highly esteemed colleague Nigel Lowe. For nearly two decades we have worked together in the Commission on European Family Law (CEFL), to develop common principles in different fields of family law and bridge the differences between civil and common law approaches. Throughout this time I have respected Nigel Lowe's openness to foreign law and his exceptional competence. He has also made outstanding contributions to the Council of Europe and the Hague Conference, in particular on child abduction and child protection. He also recognised the impact of European Union law on family law at an early stage. Today, as we are confronted with a whole range of European Regulations in the field of international family law, we face some challenges as old problems are brought into a new light.

THE PROBLEM OF MANDATORY AND OVERRIDING MANDATORY PROVISIONS

Mandatory law (ius cogens) means rules that cannot be derogated from by contractual agreement. Such rules are not a new phenomenon in family law. Quite to the contrary, in many fields of family law there was no party autonomy in either domestic or international cases. However, today there is a growing ‘contractualisation’ in domestic family law. There is also a growing, if limited, recognition of party autonomy in international family law. As a result, the issue of placing limits on this autonomy and the protection of the weaker party has gained importance.

In European private international law the applicable law is determined by uniform conflict-of-laws rules. These provisions generally distinguish between different categories of national mandatory rules. ‘Simple’ mandatory rules form a part of the applicable law, the lex causae. If they are of foreign origin, they will be applied together with the foreign law. This means that in fields where there is party autonomy a choice of a law by the parties is also a choice of the mandatory rules of that law. There is, however, also another category of mandatory provisions. Such rules of fundamental importance are ‘internationally mandatory’ or ‘overriding mandatory’ rules. Domestic rules of this kind will be enforced directly also against a chosen foreign law.