Explanatory Memorandum to COM(2004)616 - Amendment of Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as regards treaties with the Holy See

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dossier COM(2004)616 - Amendment of Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in ...
source COM(2004)616 EN
date 29-09-2004
1. Council Regulation (EC) No 1347/2000 ("the Brussels II Regulation")  i provides for the mutual recognition of judgments in matrimonial matters. It is, as a general rule, limited to civil proceedings and does not apply to decisions issued by religious authorities.


2. As an exception to this rule, Article 40 stipulates that decisions taken by ecclesiastical courts in Spain, Italy and Portugal pursuant to the treaties between these Member States and the Holy See (referred to as 'Concordats') are recognised in other Member States pursuant to the rules of the Regulation. These treaties give the ecclesiastical courts in the Member States concerned competence to annul canonical marriages.

3. Article 40 was amended in Annex II of the 2003 Act of Accession so as to mention the Agreement between Malta and the Holy See on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993.

4. The wording of Article 40 is reproduced in Article 63 Council Regulation (EC) No 2201/2203  i, which will repeal and replace 'the Brussels II Regulation'. Regulation (EC) No 2201/2203 which entered into force on 1 August 2004 will apply from 1 March 2005 in all Member States, except Denmark.


5. Malta has requested that Article 63 of Regulation (EC) No 2201/2003 be amended so as to mention its Treaty with the Holy See. However, since the Regulation was adopted prior to Malta's accession to the European Union, it was agreed to introduce the amendment pursuant to Article 57 of the 2003 Act of Accession. This provision foresees a simplified procedure whereby amendments of acts that are adopted prior to accession shall be decided by the Council by qualified majority on proposal from the Commission.


Proposal for a COUNCIL REGULATION amending Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as regards treaties with the Holy See


THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular Article 57 i thereof,

Having regard to the proposal from the Commission,(  i)


Whereas:

Article 40 of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses(  i) provides that decisions as to the invalidity of a marriage taken under the treaties between the Holy See and Portugal, Italy and Spain (Concordats) are to be recognised in the Member States on the conditions laid down in Chapter III of that Regulation.


Article 40 of Regulation (EC) No 1347/2000 was amended by Annex II of the 2003 Act of Accession so as to mention Malta's Agreement with the Holy See on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993, with the second Additional Protocol of 6 January 1995.

Council Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000(  i), was adopted on 27 November 2003. Regulation (EC) No 2201/2003 entered into force on 1 August 2004 and will apply from on 1 March 2005 in all Member States with the exception of Denmark.


Malta has requested that Article 63 of Regulation (EC) No 2201/2003, which corresponds to Article 40 of Regulation (EC) 1347/2000, be amended so as to mention its Agreement with the Holy See.

Article 57 of the 2003 Act of Accession provides that acts adopted prior to accession which require adaptation by reason of accession may be adapted through a simplified procedure whereby the Council acts by qualified majority on a proposal from the Commission.

It is justified to take account of Malta's request and to amend Regulation (EC) No 2201/2003 accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Article 63 of Regulation (EC) No 2201/2003 is amended as follows:

In paragraph 3, the following point (c) is added:

" (c) Agreement between the Holy See and Malta on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993, with the second Additional Protocol of 6 January 1995".

Paragraph 4 is replaced by the following:

"4. Recognition of the decisions provided for in paragraph 2 may, in Spain, Italy or Malta, be subject to the same procedures and the same checks as are applicable to decisions of the ecclesiastical courts handed down in accordance with the international treaties concluded with the Holy See referred to in paragraph 3."

Article 2

This Regulation shall enter into force on twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply from 1 March 2005.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels,

For the Council

The President