L’inserimento di norme materiali in misure legislative dell’Unione nel campo del diritto internazionale privato

Some of the legislative measures enacted by the EU in the field of judicial cooperation in civil matters include provisions which are substantive in nature, and ultimately harmonize, albeit in respect of specific issues, the private law of Member States. For instance, Regulations (EU) 2016/1103 and 1104, on the property regimes of international couples, set forth the minimum formal requirements that agreements between spouses or partners must comply with to be valid, regardless of the applicable law (article 25, paragraph 1, of the two texts). Article 81 TFEU, it is contended, enables the EU legislature to engage in the substantive regulation of cross-border relationships under the condition that the resulting substantive harmonization is instrumental to the harmonization of private international law rules stricto sensu. The paper elaborates on the notion of instrumentality to be employed in this context, and on the standards against which it should be assessed.