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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. KEYWordS: fraus legis, migration, freedom of movement, recognition * date of reception: 03 January 2018. date of acceptance: 05 January 2018. ** Professor at the University of Coimbra, Faculty of law, 3004-528, Coimbra, Portugal, dulce. rdgr@gmail.com. M&Clr_ii_1.indd 121 26/04/2018 10:03:50 122 Market and Competition Law Review / volume ii / no. 1 / april 2018 / 121-145 1. Introductory remarks Within integration or close cooperation arrangements, where trust plays a pivotal role, it would seem that fraus legis or evasion of laws would lose its interest as a mechanism of control in recognition procedures. 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 requirement. in fact, the European Court of Justice has highlighted in several occasions that Member States have the choice not to draw effects from acts issued by or activities that took place in other Member States, if obtained fraudulently. This has been asserted in traditional situations of acquisition of nationality, convenience marriages and the fulfilment of residence criteria for attainment of residence titles. access to professional activities and, mainly, the attribution of driving licences have also attracted the attention of the Court, which has consistently upheld the relevance of fraus legis in cases where artificial, untrue or non-serious situations are created and used in order to attain rights and benefits awarded or permitted by European Union law. our aim is to track the evolution of both the recognition mechanism and the fraus legis requirement, explaining its particular importance as a mechanism that allows for a more rooted mutual trust between Member States, constituting, therefore, an exception to recognition in hard cases. This article will also analyse the difficulty of defining clear guiding lines and procedures for the correct control (detection and proof) of a fraudulent situation and the effects that can be drawn from such cases. The ultimate purpose is to cast a fresher glance towards the traditional foundations of the recognition mechanism and the fraus legis doctrine and to bring them closer together, taking into consideration the new challenges that Member States face while trying to effectively implement European Union law. 2. Recognition as an essential tool for the internal market it seems almost a redundancy to recall the influence that recognition – in particular mutual recognition – has had on the development of the internal market and its fundamental freedoms by rendering easier, faster and less burdensome the circulation of goods, persons, services and capital. also in the area of freedom, security and justice, recognition has been a landmark for the development of instruments that allow for a closer Union, with more effective tools and instruments. M&Clr_ii_1.indd 122 26/04/2018 10:03:51 123 Challenges and Constraints to Recognition in the Field of Freedom of Circulation | Dulce Lopes However, the wave of recognition has always had its critics and has shown some flaws in some cases, even systemic ones.1 a more structured approach to the institute of recognition, its multiple shapes and foundational criteria are, thus, presented henceforth. 2.1. Concept of recognition as an instrument of relationship between legal orders, recognition has been profusely used in the international arena, either in public international law (as happens with the recognition of States, governments, international organizations, etc.), in private international law (recognition of judicial and arbitral decisions, authentic acts2 and private situations) and in the more recent field of international administrative law3 (recognition of administrative acts and administrative situations). 1 in the context of the application of regulation 604/2013 (the dublin regulation), the Court of Justice ruled that mutual trust and recognition are subject to limitations, whenever deficiencies in the asylum procedure and detention conditions in Member States are serious (vide Judgment of 21 december 2011, N.S. V. Sec’y of State for the Home Dep’t, Joined cases C-411/10 & C-493/10, EU:C:2011:865; Judgment of 14 November 2013, Bundesrepublik Deutschland v. Kaveh Puid, C-4/11, EU:C:2013:740; Judgment of 10 december 2013, Shamso Abdullahi v. Bundesasylamt, C-394/12, EU:C:2013:813). The same has been decided within the mechanism of the European arrest Warrant in the European Court of Justice Judgment of 5 april 2016, Pál Aranyosi and Robert Căldăraru, Joined cases C-404/15 and C-659/15 PPU, EU:C:2016:198. 2 in this specific area, regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession has changed the legal framework regarding authentic instruments from recognition to acceptance, as a way to harmonise their evidentiary effect [Carmen azcárraga Monzonís, “New developments in the scope of the circulation of public documents in the European Union”, Zeitschrift für Zivilprozess International – Jahrbuch des Internationalen Zivilprozessrechts, 18 (2013) 256] and to better differentiate between the instrumentum and the negotium it embodies. 3 lorenz von Stein, “Einige Bemerkungen über das internationale Verwaltungsrecht”, Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich, 6 (1882): 395-442, has been credited as the first representative of this field, according to Christian tietje, “internationalisiertes Verwaltungshandeln”, Rechtstheorie 39 (2008): 258-263. among authors that aimed over the years to characterise international administrative law, either by bringing it closer together to an international law paradigm, or by seeing it as a new national law subject (analogous to private international law), a special reference is due to Neumeyer, who established the necessity of such field in imperatives of justice, demanding that internal border rules (“Grenznorm”) recognise foreign rules and decisions [Karl Neumeyer, Internationales Verwaltungsrecht – Allgemeiner Teil, Vol. iV (Zürich, leipzig: Verlag für recht und Gesellschaft aG, 1936), 19-23 and 436-438]. The search for an identity for international administrative law is no easy task due to its plurality of areas and methods of intervention [vide Eberhard Schmidt-aßmann, “Verfassungsprinzipien M&Clr_ii_1.indd 123 26/04/2018 10:03:51 124 Market and Competition Law Review / volume ii / no. 1 / april 2018 / 121-145 in general, recognition, in its variations, integrates a legal proposition4 that allows for the production of effects of a foreign act or situation in the receiving State. This reception, however, does not correspond to a “blank check” towards the State of origin, since it is essential to the figure of recognition that the ad quem State preserves a certain margin of control over the criteria and effects of such recognition. as Moura Vicente puts it, the figure of recognition involves a waiver to primarily regulate the situation at hand,5 but not to control its effects in the recognising State.6 Therefore, there is no definitive waiver or transfer of sovereignty or public power to the State of origin,7 but a balancing of interests between legal orders and the individual interests affected, according to Wenander.8 This control is not impeded by the circumstance that, in a relevant number of situations, recognition has become more and more automatic and guaranteed in general terms and therefore does not depend upon a concrete recognition act. in any case, the State reserves a faculty of control of the basic premises of recognition, even when it is prima facie construed as mandatory. für den Verwaltungsverbund”, in Grundlagen des Verwaltungsrechts, Vol. i, 2nd ed., ed. Hoffmannriem, Schmidt-aßmann, Voßkuhle (München: Verlag C. H. Beck, 2012), 299]. in any case, conceived as a discipline that regulates administrative situations in an international setting, it necessarily includes the area of recognition of foreign administrative acts that is essential for our study. 4 term used by dominique Bureau and Horatia Muir Watt, Droit International Privé, Tome I – Partie Générale, 3rd ed. (Paris: Presses Universitaires de France, 2014), 274, within recognition of court decisions. 5 dário Moura Vicente, “liberdades comunitárias e direito internacional privado”, Revista da Ordem dos Advogados 69 (2009): 808. 6 Paulo otero, “Normas administrativas de conflitos: as situações jurídico-administrativas transnacionais”, in Estudos em Memória do Professor Doutor António Marques dos Santos, Vol. ii, ed. dário Moura Vicente, luís de lima Pinheiro, Jorge Miranda (Coimbra: almedina, 2005) 786-787, mentions a

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