THE RT HON LORD JUSTICE THORPE, Head of International Law for England and Wales, and ELEANOR SHARPSTON, Advocate General (CJEU)
The opportunity for references to the Court of Justice of the European Union CJEU was effectively created by the commencement of the wide ranging Brussels II Revised Regulation (also known as the ‘Brussels IIa' or ‘Brussels II bis' Regulation) which came into operation on 1 March 2005. As the law of the European Communities then stood, a reference to the Court could only be made by a court of last resort against whose decisions there was no further recourse under national law (normally, the Supreme Court of the Member State concerned).
Obviously, the enlargement from 15 to 27 Member States increased the potential role of the Court in answering references for preliminary rulings. Another increase in the number of references is likely to come with the Lisbon Treaty which, with effect from 1 December 2009 enabled final courts to refer where it is deemed necessary so to do. Furthermore, it is safe to predict that the significance of the Court in the field of international family law will continue to grow as other Regulations come into being and then into operation. Not far distant lies the commencement of the Regulation for the Reciprocal Enforcement of Maintenance Orders. Beyond that we can foresee the Regulation on Succession and Wills and, possibly, a Regulation on Marital Property Regimes. Given this foreseeable future it is important to understand the practice of the Court and how Member States can contribute to its successful operation.