Attempts to Reconcile Heterogeneity in the EU Integration of Family Law

EU member states, despite many shared institutions, have heterogeneous concepts of what exactly comprises ‘family’, and where exactly family/state boundaries lie. The progressive establishment of an area of freedom, security and justice in the EU has brought family law onto the EU agenda, with mutual recognition and human rights the leading templates for different kinds of policy-making. In different ways, both mutual recognition and human rights imply a one-size-fits-all approach to policy-making – however this paradigm has been facing increasing challenges. Taking three case studies, and using process tracing, this paper delves into a policy area, family law, which has received little attention from political scientists. Results show that resistance on the part of some member states to a one-size-fits-all approach on the one hand, and institutional constraints on the fundamental redesign of problematic policies on the other hand, has ultimately led to a considerable degree of differentiated integration in this field. Attempts to accommodate heterogeneity stretch from enabling a complete opt-out from the entire policy area (Denmark), case-by-case opt-ins (UK and Ireland), all the way to the other extreme, with the first ever use of ‘enhanced cooperation’ in the history of the EU in 2010 (15 member states). Recently, both mutual recognition and human rights appear to have been questioned as feasible approaches to the policy area, the former by a recent ECJ decision, and the latter by an express provision in the Lisbon Treaty. The results imply that heterogeneity will need to be factored in more comprehensively as integration – particularly political integration - proceeds.