Identifying the goals of a branch of law is an important task. Clear and coherent goals allow the content of both legal rules and court judgments to be formulated in a way that facilitates their attainment. The previous chapter illustrated that, according to traditional legal theory, tort law serves a plurality of goals. Of these, compensation and satisfaction are widely accepted as being most relevant when the result of a tort is personal injury. They provide guidance as to how losses arising from personal injury should be treated and, particularly with respect to immaterial losses, how pain and suffering damages should be set in order to achieve these goals.

The conclusion drawn from the preceding analysis is that in order to attain compensation and satisfaction, the damages awarded for pain and suffering in cases of personal injury should be determined on the basis of criteria pertaining to the resulting immaterial effects of the injury, namely the reduction in health and quality of life. To assess these effects, the severity and duration of the injury in combination with the age as well as other special characteristics of the victim at hand, should be taken into consideration. Unfortunately, as noted previously, despite being accepted by legal systems as the main elements for determining pain and suffering damages, these criteria are not always explicitly incorporated as such and subsequently not clearly reflected in court decisions. To the extent that judicial adjudication on damages fails to take into consideration the reduction in health and quality of life resulting from a personal injury, it may also be unsuccessful in accomplishing the goals of compensation and satisfaction.

Having investigated the goals of tort law and the subsequently emerging criteria for assessing pain and suffering damages, as these are stipulated by traditional legal theory, the analysis now turns to law and economics. The following sections present the goals of tort law as accepted by economic analysis, in order to provide the underlying rationale that should permeate the assessment of damages for immaterial losses. These goals provide a measure of judgment regarding the competence of current and hereafter proposed methods of damage assessment to attain them.

The preceding detailed description of the QALY, although far from being complete, aimed to show that the QALY is a reliable measure of the quality and duration of life that has resulted from and is supported by thorough scientific research. The previous analysis emphasized the QALY's strengths and weaknesses in the context of the economic appraisal of health care programs and interventions, where it has been used so far. The ability of QALYs to represent the consequences of different health treatments and interventions in terms of morbidity and mortality in a relatively simple manner has led many researchers to recognize the QALY as the best method currently available to assist the allocation of health care resources, although this assertion has not been uncontested. Taking advantage of these characteristics, the current chapter revisits the problem underlying the assessment of pain and suffering damages for personal injuries, offering a solution that is based on an alternative use of the QALY.

As explained previously in chapter 2, the problem with the assessment of pain and suffering damages, as it is currently performed in most of the countries examined, is that it lacks a framework which can take into account the relative consequences of different types of injuries on the remaining life expectancy and the health and quality of life of the victim and translate them into monetary awards. The result is that damages awarded may be unpredictable and not reflect the gravity of the immaterial loss incurred. Under these circumstances it is doubtful whether the amounts granted can provide fair compensation to the victim, and offer appeasement for her loss. Analogous negative repercussions are generated from current assessment practices for deterrence and loss spreading. To deter potential tortfeasors, the magnitude of pain and suffering damages should depend on the gravity of the losses and be easily expected to induce individuals to take precautions. Similarly, to ensure that liability insurance is sustainable and encourage its provision and purchase, the size of pain and suffering damages should be verifiable ex ante to allow incorporation of the losses into the premiums and product/service prices offered.

The assessment of pain and suffering damages as it is currently performed in many countries does not seem to take into account all the crucial elements that would allow the objectives of tort law and of the economic analysis of tort law to be attained. The preceding analysis clearly demonstrated that there is a large scope for improvement, which could be achieved by utilizing a measure that has been used so far to evaluate health treatments and medical interventions.

The proposed QALY approach can take into consideration elements that are important for the attainment of compensation and satisfaction, such as the intensity of the pain, the type, severity and duration of the injury, the loss of life expectancy, and the personal characteristics of the victim, and express them in the resulting awards in a predictable and consistent manner. Moreover, the QALY can offer the missing framework to estimate the ex ante determined damages; it can set the damages so as to ensure that the injurer correctly internalizes the costs the victim would be willing to pay and that the victim is not over-insured against her will. By treating immaterial losses arising from personal injuries in a way that is consistent with both deterrence and insurance considerations, the suggested framework can therefore strike a balance between the two goals with respect to the treatment of immaterial losses. Besides the abovementioned advantages of the QALY, chapter 5 also explained that the proposed approach is expected to result in a decrease in litigation costs and to facilitate speedier adjudication, consequently enhancing the overall reliability of the judicial system. Finally, chapter 6 examined whether, under certain conditions, the QALY framework could be able to address the possibility that victims (and judges) disregard the gradual improvement in life satisfaction after an adverse event due to hedonic adaptation and focusing illusion and thus claim for (or decide in favor of) a higher damage award than what would correspond to the actual losses incurred. If additional empirical evidence were indeed to corroborate that these misperceptions occur regularly, and at the same time legal scholarship were to reach the conclusion that they should be accounted for in the assessment of pain and suffering damages, then the proposed QALY framework could perform this task.

The method used to assess pain and suffering damages should, according to the previous chapters, take into consideration many different factors to be able to attain the goals of tort law as stipulated both by traditional legal theory and by law and economics. On the one hand, to achieve fair compensation and satisfaction, pain and suffering damages should reflect the total health reduction resulting from the personal physical injury. Therefore, factors such as the type, severity and duration of the injury, the pain and emotional strain incurred, as well as the loss in life expectancy, should figure in the assessment. On the other hand, to strike a balance between the goals of deterrence and insurance and promote both goals through the treatment of immaterial losses, pain and suffering damages should be based on the ex ante determined damages, namely the amount that a victim would be willing to forego before an accident occurs to reduce her expected immaterial losses.

Besides the ability to incorporate these features, the assessment should also generate consistent and predictable amounts. Consistency and predictability of the amounts will facilitate deterrence by allowing potential tortfeasors to take into consideration the prospect of having to pay a certain amount of damages if they inflict harm. Furthermore, it may also promote loss spreading by allowing insurers, product manufacturers and service providers to better predict the expected injury damages and incorporate them into the premiums offered. The analysis in the previous chapter showed that the assessment of pain and suffering damages should additionally be as accurate as necessary to reduce the administrative costs of justice. A proposal in this direction is to assess pain and suffering damages by taking into account the average losses resulting from a certain type of injury as well as the age of the victim. In any case, the assessment method implemented should strike a balance between the costs of additional accuracy and the benefits of that accuracy for the attainment of the aforementioned goals.

The assessment of noneconomic damages associated with personal physical injuries remains a daunting task for courts and is the subject of a longstanding and unresolved debate in legal scholarship. Personal physical injuries are closely related to human activity and may hence occur in a multitude of contexts, for instance as a result of defective products, medical errors, traffic or work-related accidents. The consequences of such injuries can be very detrimental to the lives of the victims, especially when they involve permanent disability. The numbers are quite revealing. According to the latest statistical data from the European Commission, traffic accidents occurring on the roads of the European Union in 2012 resulted in more than 28,000 fatalities. For every death it was estimated that four permanently disabling injuries, such as brain damage or spinal cord lesion, and eight serious injuries occurred. A similar situation is observed in the workplace where, based on the most recent statistical data, more than 2.8 million serious accidents occurred in 2009, resulting in 3,806 fatalities. The way in which courts assess pain and suffering damages in cases of personal physical injuries does therefore not only concern legal theory and practice, but can also potentially directly affect a large number of people. Improving the way pain and suffering damages are currently assessed in the context of tort law lies at the heart of this book.

AIM OF THE RESEARCH

On the occurrence of wrongful behavior that results in personal injury, the injured party can claim pain and suffering damages for the immaterial loss incurred. Assessing this loss is not straightforward and there are different approaches to guide the assessment across the European legal jurisdictions. In some countries, for instance, courts are assisted in their assessment by the existence of systematized tables, which report the amounts that have been awarded for specific injuries in previously adjudicated cases. In others, ranges of injury-specific amounts are stipulated, based again on awards that have been granted by courts in the past.4 Instead of using ranges, courts in some countries are guided by tables that include amounts corresponding to points of invalidity. In other countries where no system of rationalizing pain and suffering damages is in place, judges may enjoy full discretion in deciding the magnitude of the award.

In the past 15 years in Europe, there has been an increasing trend towards the provision of mechanisms for the anonymous relinquishment of children to the care of the state. Anonymous birth or ‘baby-boxes’ are now available in many European countries, raising important questions concerning the right of children to life, to family and to identity.

This chapter will analyse the practice of anonymous relinquishment throughout Europe, and propose a solution to this difficult social and legal dilemma that will protect the children involved, without placing unnecessary and potentially harmful burdens on mothers. It will show that a balance is needed, placing the best interests of the child as the primary consideration, but also respecting the balance that must be achieved between children, their parents, and the state.

ANONYMOUS RELINQUISHMENT OF CHILDREN: WHAT IS IT, AND WHERE IS IT PRACTISED?

Anonymous birth is traditionally the practice by which mothers can give birth in a hospital without stating their identity, and the child is then placed for adoption. While France is the most prominent exponent of this practice, it is also legal in Luxembourg and Austria. Other European countries also incorporate secrecy not simply as a facet of the adoption process, when fi les are sealed, but at the time of birth. In Italy there is no requirement that the mother be entered onto the birth certificate of the child, and in the Czech Republic and Greece, although the mother's identity is recorded, the birth records can be kept secret.

In addition to anonymous birth, in recent years there has been an increasing trend towards the creation of ‘baby-boxes’ throughout Central and Eastern Europe, which allow parents to leave children in the care of the state anonymously. This practice dates back to the 12th century in Italy, where Pope Innocent II installed foundling wheels in orphanages to prevent the more common practice of women drowning their unwanted children in the River Tiber. In modern times, baby-boxes more commonly take the form of an incubated crib in a hospital or child welfare centre. When a child is placed in the crib, a bell is rung, and the mother can leave anonymously before a carer comes to take the child.

INTRODUCTION

For approximately thirty years now, the European Court has constantly been reshaping the relations between individuals, the family and the State. On the one hand, the autonomous concepts of private life and family life have been given a totally unexpected width. On the other hand, the obligations imposed on States in this ever-enlarging field have also become heavier. Article 8 requires States not only to abstain from undue interferences, but also to protect individuals from each other and to adopt positive measures designed to ensure the effectiveness of rights.

However, the rights guaranteed by the Convention may suffer restrictions on different grounds. The second paragraph of Article 8 of the Convention foresees that States may limit individual rights in order to pursue different legitimate aims such as the security or the economic well-being of the country, the protection of the rights and freedoms of others or the protection of morals. The pattern of justifications imposed on States regarding actions and abstentions in the ambit of personal and family life is evolving: at first sight, one could think that morals and traditions are much less efficient today than they used to be in the early case law of the Court. If this would be consistent with the contemporary favour for ‘liberal pluralism’, recent decisions suggest that the Court is still ready to uphold national solutions inspired by ‘legal moralism’.

This contribution studies, firstly, how moral and traditional views seemed to have been progressively delegitimised as justifications for restrictions to personal autonomy and equality between people and family forms (section 2) and, secondly, how, for a couple of years, majoritarian conceptions of morality appear reinvested with considerable weight while traditional views on family relations are treated in a schizophrenic way by the European judges (section 3).

FROM A DELEGITIMISATION OF MORALS AND TRADITION AS JUSTIFICATIONS FOR RESTRICTIONS ON RIGHTS

The protection of morals has oft en been invoked by States trying to justify restrictions on individual freedom in sexuality-related matters (section 2.1). The protection of the traditional family has rather been advanced as an argument justifying the differentiated treatment of unconventional families and inequalities between men and women (section 2.2).

The present essay will deal with EU Regulation No. 606/2013 on mutual recognition of protection measures in civil matters, which has been recently adopted on the basis of Article 81 TFEU in order to ensure the free circulation of such measures throughout the EU. To that end, firstly certain key issues which have arisen so far in the context of cross-border ex parte measures will be tackled as well as their enforcement abroad. Subsequently, a short overview of the new Regulation and of its main features will be presented. Finally, a few considerations focusing on the interrelationship between the EU uniform rules and the Italian legal system shall be addressed.

CONTEXT OF THE EU LEGISLATIVE PROPOSAL

According to certain surveys, around one European woman in five has suffered from violence, such as physical assault or psychological harm, at least once during her adult life. In the majority of cases, such violence has been domestic violence. However, this kind of violence is not limited to (ex–)spouses and relatives. In fact, it also includes victims who are stalked by acquaintances, by strangers, or sometimes even by ex-partners with whom they were not married or did not enter into a registered partnership. Moreover, the victims may be indirect, such as family members, especially children, who also suffer from the consequences of violence committed by and among their parents. Therefore, in order to satisfy the need for protection shown by these victims, from the 1970s onward several Member States started to enact ad hoc legislation. Such legislation provides for the possibility to adopt temporary and preventative remedies – generally aimed at removing the off ender of domestic violence from the protected party's home and/or workplace for a limited period of time – regardless of whether or not the violent conduct amounts to the commission of a crime and independent from divorce proceedings.

Until now, by their very nature, the effects of such legal remedies have been confi ned within the territory of the issuing Member State. As such, when a protected person exercised his/her right to free movement, the protection gained through a national order was irremediably lost unless an additional order was issued in the Member State of destination.

INTRODUCTION

What is a parent? And who is it? For ages, the law concerning the establishment of legal parenthood has been built on the postulate that a child's genetic parents are the parents of that child and, thus, the law should only confirm this. This notion that legislation is and ought to be a mere reflection of a biological fact has long characterised the legal discourse on parenthood. At the same time, however, it is obvious that parenthood, from a legal point of view, is not an unambiguous concept. Behind a uniform façade is a more complicated structure. Different ideologies and adjustments to reality have resulted in regulation that does not have one but rather several possible answers to the question of ‘who is the parent?’

In recent decades, the view of what and who a parent is has rapidly changed. Several factors have led to this development. The family as a societal phenomenon has transformed over the years. The nuclear family, based on the married heterosexual couple, is no longer the only socially or legally accepted model. There has been a dramatic increase in the number of reconstituted families, single-parent families, and rainbow families. Children can have many ‘parents’ during a lifetime, in particular during childhood. The picture of parenthood becomes even more complex through the use of different methods for assisted reproduction that are easily accessible on a global market, helping many people become genetic and biological parents when this was previously impossible. At the same time as the concept of parent has been widened to also include non-genetic parents, legal ties between family members can now be questioned and revoked on scientific grounds, as DNA analysis is used more frequently in order to clarify genetic kinship.

In the midst of these developments stands the child, whose best interests should be the primary consideration when legal matters affecting the child are at stake. A need to re-evaluate the fundamentals of the regulation concerning legal parenthood emerges if it is the child's interests that are to be protected. Nature can no longer be used as the sole normative source for rules concerning the establishment of legal parenthood in the post-modern society.

INTRODUCTION

The 2011 Proposal for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (hereinafter, ‘the Proposal’) is designed to fill in a very serious gap in the process of the European unification of private international law rules in the field of family law.

The main aspects of the Proposal have already been analysed in detail by several distinguished scholars. Subject to some qualifications and possible improvements, most of the solutions envisaged are very reasonable and deserve clear and unqualified support. This is true with respect to all the main areas covered by the proposed instrument, i.e. jurisdiction, applicable law, and the recognition and enforcement of decisions and authentic instruments.

In particular, the choice of submitting, to the jurisdiction of the courts of one single country, questions of the dissolution of matrimonial property regimes and the connected issues of succession and divorce (Articles 3 and 4 of the Proposal) is very sensible. With respect to the determination of the applicable law, the adoption of a unitary system (Article 15) and the broad admission of party autonomy (Articles 16 and 18 of the Proposal) are also entirely satisfactory.

However, in our view, the weakness of the proposed system lies in the choice of an immutable connecting factor for the determination of the law which is applicable to the matrimonial property regime. In this contribution we focus on the shortcomings of this solution and on the possible alternatives.

THE IMMUTABILITY SYSTEM FROM A COMPARATIVE LAW PERSPECTIVE

Pursuant to Article 17(1)(a) of the Proposal, the applicable law is – in the absence of a choice of law by the spouses – ‘the law of the State of the spouses’ first common habitual residence after the marriage’.

The reference to the first common habitual residence implies that a change of the common habitual residence of the spouses during the marriage does not entail any change of the law governing the matrimonial property. A ‘conflitmobile’ is excluded through a crystallisation of the applicable law, as determined immediately after the marriage.

First and foremost, families in the European Union have to look to the national bodies of law regulating their legal relationships. On the EU level, the conflicts of laws as well as jurisdiction and the recognition and enforcement of judgments in family matters have been dealt with, but there is virtually no EU substantive family law. The same is true for the regulation of immigration. Article 79 TFEU allows for limited legislative action in accordance with the underlying principles of subsidiarity and proportionality in the areas of law enumerated in Article 79(2) TFEU. In spite of that commitment, the development of a common EU immigration policy is still a dream for the future. Family reunification policy has not been agreed upon within the European Union. However, on the basis of European Union citizenship, a remarkable body of case law regarding the family life of EU citizens with third country nationals has emerged. Hence, EU law increasingly influences family life in the European Union.

EU CITIZENSHIP AS A TRIGGER FOR FUNDAMENTAL EVOLUTIONS

EU citizenship is intrinsically related to the EU's integration process and has brought about significant evolutions.

MOVING BEYOND THE MARKET RATIONALE

Moving beyond the market rationale, EU citizenship was introduced by the Treaty of Maastricht, thus at a time when the European Economic Community transformed into the European Union. The original Treaty of Rome presupposed not only Member State nationality, but also economic activity in order to enjoy the fundamental freedoms. However, these economically active ‘market citizens’ only represent a portion of EU citizens.

EU citizenship shows that the European Union's aspirations go beyond the traditional economic rationale. Free movement is no longer for economically active persons only. Instead, EU citizenship is designed to be the fundamental status of the nationals of all Member States, as the Court of Justice of the European Union (CJEU) has repeatedly held and as EU legislative acts confirm. All EU citizens have a right to move and reside freely within the Union and corresponding rights are granted to their family members, irrespective of their nationality, but under certain conditions. These conditions are in particular laid out in the Citizens’ Rights Directive.

INTRODUCTION

Maintenance as a claim between former spouses has a connection to many gender aspects, above all in opposite-sex marriages. These gender aspects have not yet been well researched in many European countries, and as a result we can see, for example, that amendment bills contain prejudiced argumentation or argumentation with general clichés.

In my research, based especially on German and Czech law, I seek to show that the background of many maintenance regulations is incompatible with gender equality.

I understand gender equality as a real type of equality that goes beyond formal equality de jure. A regulation is only equal when it does not reproduce traditional gender roles but respects the real differences between the sexes in society to avoid indirect discrimination. I will also draft some principles that would make maintenance more equitable.

NECESSITY TO JUSTIFY MAINTENANCE

Divorce should end every legal bond between spouses. According to German law, there is a basic principle that every person should be responsible for him/ herself after divorce; it means that he or she should provide for his or her own support. In Czech law, there is no explicit basic principle of maintenance between former spouses in the law, but the interpretation of the law generally recognises the duty of the divorced spouse to provide for his own support, too. Even in the CEFL Principles there is a basic principle of self-sufficiency. It means that maintenance claims are an exception to this basic rule. Therefore a justification for this exception appears to be necessary.

However, there are also other reasons for the justification of maintenance claims. The social acceptance of maintenance between former spouses in the Czech Republic and in Germany is low. A well-researched and structured justification supports the parties – the decision of one of the spouses to ask for maintenance and the other spouse to accept the claim and provide maintenance. The justification of the maintenance claim also explains the sense and purpose of the law, which is important for its interpretation and application.

Finally, a well-structured and researched justification for maintenance between former spouses appears to be necessary because of the gender dimension of maintenance between former spouses.

Questions of biological and social parenthood are posing great challenges to German constitutional law. In the field of parenthood two decisions of the German Constitutional Court can be highlighted. The first one is a judgment from 2003 on the rights of biological fathers which addresses biological parenthood as well as social parenthood. This ruling was a first step in strengthening the position of biological fathers. The other judgment was rendered in February 2013 when the Court held that the non-admission of successive adoption by registered civil (same-sex) partners is unconstitutional, and furthermore stated that same-sex parents can be considered to be parents in the sense of the Basic Law, and are thus protected by constitutional law, if the formal status of parenthood has been assigned to them by private law.

SUPREMACY OF LEGAL PARENTHOOD

The Federal Constitutional Court largely follows the decisions taken by the parliamentary legislator: German constitutional law mainly focuses on legal parenthood as assigned by private law rules on descent. It is important to note that German private law rules on descent implicitly assume a close correlation between legal and biological parenthood.

In German constitutional law the fundamental right to family relations (Article 6 of the German Basic Law) includes a specific fundamental right of parenthood. Under Article 6 paragraph 2 of the German Basic Law the ‘care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them’. Calling this right a ‘natural’ right seems to imply that the main criterion for parenthood is biological parenthood. However, this would be a false conclusion, even though in the majority of cases biological parents are indeed the holders of parental rights.

Under constitutional law the status of parenthood is closely tied to subconstitutional rules, notably the provisions of the BGB – the German Civil Code. The Federal Constitutional Court generally considers the very same person who is a parent by subconstitutional family law to be the holder of the fundamental right of parenthood under Article 6 paragraph 2 of the Basic Law. Whether parenthood is rather a biological concept or a social one therefore depends on German private law.

The use of nationality and domicile as a connecting factor for private international law questions over same-sex relationships has already been abandoned in Belgium and the Netherlands, whenever such use would deny giving effect to a same-sex marriage. Recent French developments mark a further remarkable shift away from its use as a means to determine personal law. Finally, England may find itself forced to reconsider its approach to the use of domicile as a connecting factor, once the implications of its new law on same-sex marriage are properly understood.

INTRODUCTION

In the United States, the approach taken by the courts in determining the validity of a marriage from another state is generally to presume validity if the necessary conditions, both as to form and capacity, are fulfilled under the law of the state where the marriage was celebrated, the lex loci celebrationis. Rebutting this presumption depends on a properly formulated application of the public policy exception. This causes tensions where an increasing number of US jurisdictions now permit same-sex marriages, whilst others remain vehemently opposed. Section 2 of the Defense of Marriage Act 1996 confuses matters as it purports to enshrine a right not to recognise an out-of state same-sex marriage, but this does not override the basic principle that the refusal needs to be based on a legitimate use of the public policy exception. The debate on the scope and nature of this exception, and the limits which may be imposed on its use by US constitutional protections, has been continuing for many years.

European jurisdictions, on the other hand, need not always invoke a public policy exception to refuse recognition to an otherwise valid foreign same-sex marriage. Frequently, their private international law rules provide an additional peg on which to hang a refusal. The formal validity of a marriage still depends on adherence to requirements in the place of celebration, but questions as to the capacity of the parties to marry are governed by each individual's ‘personal law’, usually the law of his or her nationality or domicile.