I "controlimiti" al funzionamento del limite dell'ordine pubblico nella proposta di regolamento europeo in tema di filiazione

Abstract. — The paper addresses the « counter-limits » to the public policy exception of the EU Member States in the context of the proposal for an EU regulation on parenthood adopted by the European Commission on December 7, 2022. Besides the « orthodox » limitation provided by the principle of the best interest of the child, which stands as an « internal counter-limit » to the exception, by implying the need for striking a fair balance between the interests of the child involved and other fundamental principles of the forum, two additional counter-limits emerge. An « enhanced supranational counter-limit » based upon Article 21 of the Charter of fundamental rights of the EU, on the one hand, and an « external and indirect counter-limit » related to the creation of the European certificate of parenthood, on the other. The paper illustrates the critical issues that the enhanced supranational counter-limit raises in relation to its own material scope of application along with the tension it creates, with regard to the traditional functioning of the ordre public and the Charter of fundamental rights itself. It also addresses the relationship between the public policy of the EU Member States and the public policy of the EU. In that regard, the paper underlines the risk of non-compliance with the principle of conferral set out in Article 5, para. 1, TFEU. Finally, as to the « external and indirect counter-limit », the author argues that the latter stems from the ambiguity of the text. Therefore, the compression of the public policy exception is merely potential because it depends on the interpretation to be given to the evidentiary effects the certificate is meant to produce in the EU Member States.