The changing shape of the ‘European family’ and fundamental rights

Abstract:

In D and Sweden v Council the Court of Justice was asked to interpret two very sensitive issues. The first concerned what constitutes a family for the purposes of EU Law. This is not the first case in which the Court has considered such a question, and it has always given a restrictive answer. This time, however, because of a change in both the EU instruments available and Member States' policies on this issue, it was hoped that the Court would modify its approach and take into consideration the changing reality of today's society. This did not happen. The second issue, which was raised by the Advocate General, concerned interpretation of the recently adopted EU Charter of Fundamental Rights. The Court however remained silent on this point. The judgment of the Court is technically legitimate, yet is disappointing because its effect is to undermine both existing and potential policy developments of the Member States. Furthermore, it suggests that perhaps certain fundamental rights are not adequately protected within the EU.