Challenges and Constraints to Recognition in the Field of Freedom of Circulation: The Relevance of the Fraus Legis Institute in European Union Law

Abstract

The relevance of fraus legis – a falsely presented state of affairs – both in internal and private international law, and particularly within recognition procedures, has not been undisputed throughout the years. And in the midst of integration or close cooperation arrangements it might seem that the institute of fraus legis would definitively lose its interest due to an “unshaken” mutual confidence in the activity of other public authorities. This is however not the case, as demonstrated by European Union law where both legislative and case law examples show the renewed importance of such truthfulness or veracity requirement. Bearing this is mind, the present article has a dual purpose: the first aims to describe the legal concept of recognition in its diversity and richness. As an aggregating factor we will subsequently turn our attention to the “internal structure” of that concept and to the conditions or requisites it is dependent upon. One of such conditions is precisely the control of veracity of the act or situation that aims to be recognised by the receiving State.