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David Hodson on International Family Law: Which countries are in the EU?

Date:6 SEP 2013
Family lawyer

International Family Law Practice by David Hodson

David Hodson

David Hodson in his opinion piece on international family law, and perhaps prompted by too many rum punches in the Caribbean, looks at the many countries, territories, islands, and other geographical entities which are either part of the EU or linked with the EU in some way and needing family law consideration.

 It was whilst sipping on a delightful rum punch between the Gros and Petit Pitons on Saint Lucia in a blissful mobile and Wi-Fi free zone looking out across the Caribbean that I realised that in fact I was looking at the EU. Yes, quite possibly too many rum punches but sure enough the guide described the neighbouring island, Martinique, as part of the EU. The catamaran cruise recommended taking euros. Just as I thought I had escaped lis pendens and applicable law, it was on the Caribbean horizon.

 Predictably on return I looked into the political and legal status and confess I was surprised.

 Of course we all know the countries in the EU. 27 countries, with Croatia becoming the 28th on 1 July 2013. But were there more? I already knew that Gibraltar was in the EU and the Channel Islands were not, but what about the other EU countries and their connections around the world.

 I discovered that several EU member states have special territories which for historic, geographic or political reasons enjoy special status either within or outside the EU, including adherence to EU laws. These are divided into the delightfully named "Outermost regions" which gives the impression of areas about to fall off the map, overseas countries and territories and then the special cases. Finally, as a completely special case there are areas of extra territoriality. It warrants a much longer article but this is hopefully a summary.

 There are eight outermost regions which are part of the EU and subject to EU law with some minor exceptions. The Azores and Madeira are Portuguese islands in the Atlantic. The Canary Islands are the Spanish archipelago off the African coast. French Guiana, Guadeloupe, Martinique and Reunion are four French overseas departments treated for the most part as parts of the Republic of France, the first three being in the Caribbean and the fourth in the Indian Ocean (and indeed featured in the ECJ decision of Mercredi v Chaffe). A fifth, Mayotte, is due to become an overseas region and part of the EU on 1 January 2014 and is between Mozambique and Madagascar. St Martin and St Bathelemy in the Caribbean broke away from Guadeloupe in 2007 and for a time had an uncertain status but the former became an outermost region under the Treaty of Lisbon, although the latter remains of uncertain status. So there are eight outermost regions and practitioners should start with an expectation that EU law applies, although as always local enquiries should be made.

 There are then 21 territories known as overseas countries and territories which have a special relationship with an EU member state. They can opt into EU laws and have favourable treatments with EU legislation but they are not part of the EU itself, and EU law applies only so far as it is necessary to implement agreements. 12 of them are UK Overseas Territories and include the BVI, Cayman Islands, Falkland Islands, Pitcairn Islands, British Antarctic Territory and other miscellaneous Islands. By virtue of having full British citizenship they are citizens of the EU. There are a number of French overseas territories, some in the Caribbean and some in the Pacific and elsewhere, and some being tied to the euro. There are Dutch overseas territories in the Caribbean and there have been a number of issues about entitlement to vote in European Parliamentary elections. Finally in this category there is Greenland which joined the European Community in 1973 with Denmark but left in 1985, although Greenlanders are full EU citizens due to Danish citizenship.

 There are then a number of so-called special cases. Some have ad hoc arrangements with the EU, some are called protocol territories because of particular protocols and some have special legislative arrangements. The Aland Islands are between Sweden and Finland and belong to Finland with partial autonomy, but EU law applies. Busingen am Hochrhein must surely be a pub quiz favourite because it is a German town completely surrounded by Switzerland and with much closer Swiss connections than Germany. This is quickly followed by other enclaves. Campione d'Italia and Livigno are Italian villages surrounded by Switzerland but part of the EU. Ceuta and Melitta are two Spanish cities on the North African coast and part of the EU although Spain carries out identity checks for air and sea passengers despite being nominally in the Schengen area, and probably quicker checks than with Gibraltar.

 The Channel Islands and the Isle of Man are British Crown dependencies but outside the EU with some special EU arrangements. EU law does not automatically apply and they have their own distinctive family laws.

 The island of Cyprus is divided into the northern third, the Turkish part, and the southern remainder governed by the government of the republic of Cyprus and part of the EU. There have been several cases concerning recognition of divorces from the northern part of Cyprus. Practitioners always need to differentiate between the two parts when considering relevant law. In addition, the UK has two sovereign bases in Cyprus, Akrotiri and Dhekelia. Unlike other British overseas territories, they are not listed as OCTs under the Treaty of Rome. Originally EU law did not apply but some EU laws apply pursuant to a particular protocol, including social policy and justice which is likely to include family law. Moreover and yet another pub quiz favourite, although they are a UK sovereign base, the currency is the euro.

 The Faroe Islands are not part of the EU despite the very close connections with Denmark.

 Then there is Gibraltar, of which much political interest recently. It is a British overseas territory and part of the EU and applies EU law following a declaration between Spain and the UK appended to para 55 of the Treaty of the European Union. It is a separate jurisdiction to the UK even though part of the EU under the UK since 1973. Like the UK it is not part of the Schengen area, which has given the opportunity for the border problems with Spain in August.

 Finally in the special cases there is Heligoland, an island off Germany which is part of the EU but excluded from the customs union, and Mount Athos in Greece which has preserved its centuries-old special legal status. Despite its prohibition on the admission of women, it is part of the Schengen area. Presumably with that prohibition, there are not many divorce suits in that forum.

 There are then two areas of extra territoriality which are terribly exciting to those of us who enjoy geographic trivia. First there is the Saimaa Canal which Finland leases from Russia but is not part of the EU and is a special part of Russia. Secondly there is the Varska-Ulitina Road in Estonia which goes through Russian territory for a kilometre. It has no border control but there is no connection to any other road in Russia. No one is permitted to stop or walk along the road. It is part of Russia but also part of the Schengen area.

 It should also be added that there are very many former special territories, in effect countries in the former Commonwealths or empires of Belgium, France, Italy, the Netherlands, Portugal and the UK which have often gained independence before the Maastricht Treaty 1993 although some have been more recent, eg Hong Kong. Unless there were particular arrangements, EU law and arrangements would not apply.

 I freely admit I had no idea the EU had such a broad geographic sweep. Perhaps it was inevitable with the changing borders across Europe throughout the last century and the break-up of commonwealths and empires. For the family lawyer it is important to be aware of these countries and whether they may be following EU family law legislation. Perhaps I should have had another rum punch.

 I am grateful as always to Wikipedia and no doubt amongst the above there are all sorts of exceptions, savings and redefinitions, and local advice should always be obtained.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.