Explanatory Memorandum to COM(2010)105 - Implementation of enhanced cooperation in the area of the law applicable to divorce and legal separation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)105 - Implementation of enhanced cooperation in the area of the law applicable to divorce and legal separation. |
|---|---|
| source | COM(2010)105  |
| date | 24-03-2010 |
1. Introduction
1.1 Background
On 17 July 2006 the Commission adopted, on the basis of Article 61(c) and Article 67(1) of the Treaty establishing the European Community (now Article 81(3) of the Treaty on the Functioning of the European Union), a proposal1 for a Council Regulation amending Regulation (EC) No 2201/20032 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters ('Rome III'). The aim was that the Council should adopt the proposal by unanimity, after consulting the European Parliament. The European Parliament gave its opinion on the proposal on 21 October 20083.
The Commission's proposal was discussed in the Committee on Civil Law Matters (Rome III), beginning in October 2006. However, unanimity could not be reached on all the proposed solutions regarding applicable law rules in the Regulation or on the proposed derogations. On 5 and 6 June 2008 the Council accordingly took note of the lack of the unanimity needed to go ahead with the Rome III Regulation, and of the existence of insurmountable difficulties that made unanimity impossible both then and in the near future. It observed that the objectives of Rome III could not be attained within a reasonable timescale by applying the relevant Treaty provisions.
On 25 July 2008 the Council noted that at least eight Member States intended to ask the Commission to present a proposal for enhanced cooperation and that other Member States might take part once the Commission had made its proposal. It considered that only an official request to the Commission by those Member States would elicit a Commission proposal that would enable each delegation to make up its own mind whether enhanced cooperation was appropriate and whether to participate in it. It concluded that any request by at least eight Member States to the Commission to present a proposal for enhanced cooperation would not prejudice the rest of the procedure and, in particular, the authorisation the Council would be asked to grant.
On 28 July and 12 August 2008 and 12 January 2009, a total of ten Member States4 addressed a request to the Commission indicating that they wished to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters and asking the Commission to submit a proposal to the Council to that effect. On 3 March 2010, Greece withdrew its request.
The proposal for a Council Decision authorising enhanced cooperation on the law applicable to divorce and legal separation and this proposal for a Council Regulation implementing such enhanced cooperation, which the Commission has adopted at the same time, are the Commission's response to the request by the nine Member States, which are hereinafter called the participating Member States. The proposal for a Council Decision contains a detailed
COM(2006) 399.
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responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, p. 1.
OJ C 15 E, 21.1.2010, p. 128.
Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and Slovenia.
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assessment of the legal conditions governing, and the appropriateness of, the introduction of enhanced cooperation in the area of the law applicable to divorce and legal separation.
2. Grounds for and objectives of the proposal
2.1 Strengthening legal certainty and predictability
In matrimonial proceedings of an international nature, the fact that national laws are very different, especially as regards conflict-of-law rules, leads to much legal uncertainty. The great differences between and the complexity of national conflict-of-law rules make it very difficult for international couples to predict which law will apply to their divorce or legal separation proceeding. The participating Member States do not provide any possibility for the spouses to choose the applicable law in such proceedings. This may lead to the application of a law with which the spouses are only tenuously connected and to an outcome that does not meet their legitimate expectations. Nor does it encourage amicable solutions.
Having due regard to the relevant parts of the explanatory memorandum to the Commission's proposal for a Regulation of 17 July 2006 (Rome III), the purpose of this proposal for a Regulation is to introduce a clear legal framework in the European Union, covering applicable law rules in the area of divorce and legal separation and allowing the parties a degree of freedom of choice of applicable law. Unlike in the Commission's original proposal, the enhanced cooperation measure concerns only applicable law and not jurisdiction, the aim being to avoid affecting Union law, namely Regulation (EC) No 2201/2003, which the original proposal was intended to amend. Despite being among the provisions inserted by the Committee on Civil Law Matters (Rome III)5, Article 20e-1 has not been included in this proposal for a Regulation. That article contains in essence a rule on jurisdiction and is closely bound up with Article 7a on forum necessitatis, which has likewise not been included as it, too, dealt with jurisdiction.
2.2 Increasing flexibility by introducing some party autonomy
There is currently very little party autonomy in matrimonial matters. The proposal renders the legal framework more flexible by introducing a limited possibility for the spouses to choose another law as the law applicable to their divorce or legal separation proceeding. To avoid the application of laws with which they have little or no connection, the spouses' choice is confined to laws with which the marriage has a close link.
It will be particularly useful to allow spouses to come to an agreement on these matters in cases of divorce by mutual consent. This will act as a strong incentive for the couples concerned to deal in advance with the consequences of possible marital breakdown and will encourage amicable divorce, which is crucial in the case of couples with children. The Rome III Regulation will also help third-country nationals to integrate by affording them the opportunity to substitute the law of their new residence for their national law.
Special safeguards are introduced to ensure that the spouses are aware of the consequences of their choice and to protect the weaker spouse.
See Council of the European Union document 9712/08.
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2.3 Preventing a rush to court by one spouse
Finally, the proposal addresses the problem of a rush to court by one spouse, i.e. where one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she regards as more favourable to his or her own interests. This may lead to the application of a law with which the other spouse has little connection or which fails to take into account his or her interests. It further renders reconciliation efforts difficult and leaves little time for mediation.
The introduction of harmonised conflict-of-law rules should greatly reduce the risk of a rush to court, since any court seised in one of the participating Member States would apply the law designated on the basis of common rules.
In the absence of choice, the applicable law would be determined on the basis of a scale of connecting factors giving priority to the law of the spouses' habitual residence, which will ensure that the divorce or legal separation proceeding is governed by a legal system with which the couple has a close connection. This will greatly increase legal certainty and predictability both for the spouses concerned and for practitioners.
The rule on the law applicable in the absence of choice is intended to protect the weaker spouse by giving priority to the application of the law of the family's habitual residence prior to separation, irrespective of the court seised by one or other spouse. It would therefore enable spouses easily to predict which law will apply to their divorce or legal separation proceeding.
3. Consultation of interested parties and assessment of the impact of the
enhanced cooperation measure
Publication of the Commission's July 2006 proposal was preceded by a wide-ranging consultation of interested parties. The latest version resulting from the negotiations in the Council, which the Commission partly reproduces in its proposal, does not differ markedly from the Commission's July 2006 proposal. This version retains the same solutions of principle for the law applicable to divorce and legal separation proceedings (e.g. the choice of applicable law, the spouses' habitual residence as principal connecting factor, the public policy exception, etc.).
The Commission carried out an impact assessment which it attached to its original July 2006 proposal. This remains relevant to the question of the applicable law, and reference will be made to it here6. The present Commission proposal implements enhanced cooperation in the area of the law applicable to divorce and legal separation. Under the second paragraph of Article 20 of the Treaty on European Union, the enhanced cooperation procedure may be used only as a last resort. Thus, the Commission may propose enhanced cooperation, and the Council may give its agreement, only on matters which the Council has already dealt with and on which it has concluded that no other solution can be found, inasmuch as the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole. It follows that the Commission can change neither the area of the enhanced cooperation – in this case, the law applicable to divorce and legal separation – nor the fundamental rules of the instrument as set out in the latest version of the text negotiated in the Council. Moreover, the content of the Commission's proposal implementing enhanced cooperation is limited by the scope specified in the participating Member States' requests for enhanced cooperation, i.e.
SEC(2006) 949.
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applicable law in matrimonial matters. In the present case, a new impact assessment covering the same subject area does not therefore appear appropriate.
4. LEGAL ELEMENTS OF THE PROPOSAL
4.1 Legal basis
The legal basis for this proposal is Article 81(3) of the Treaty on the Functioning of the European Union, which confers on the Council the power to adopt measures concerning family law having cross-border implications after consulting the European Parliament.
The proposal concerns the law applicable to divorce and legal separation These are matters governed by family law. The proposal's rules on the applicable law come into play only in international situations, that is to say, for example, those where the spouses are of different nationalities or live in different Member States or in a Member State of which at least one of them is not a national. The cross-border requirement in Article 81(3) of the Treaty on the Functioning of the European Union is consequently fulfilled.
4.2 Principle of subsidiarity
The objectives of the proposal can be met only at Union level by way of common rules governing applicable law, if necessary through enhanced cooperation. These conflict rules must be identical if the proposal's objective of increasing legal certainty, predictability and flexibility for citizens is to be attained. One-sided action by the Member States would therefore run counter to these objectives. There is no international convention in force between the Member States on the question of applicable law in matrimonial matters. The public consultation and the impact assessment carried out at the time of the Commission's July 2006 proposal have demonstrated that the scale of the problems addressed by the present proposal is significant and concerns tens of thousands of citizens each year. Given the nature and the scale of the problem, the objectives can be achieved only at Union level.
4.3 Principle of proportionality
The proposal complies with the principle of proportionality in that it is strictly limited to what is necessary to achieve its objectives. It will not entail any additional financial or administrative burdens on citizens and only a very limited additional burden on the national authorities concerned.
4.4 Choice of instrument
The nature and objective of the proposal are such that an act in the form of a Regulation is required. The need for legal certainty and predictability calls for clear, uniform rules. The proposed rules on applicable law are detailed and precise and require no transposal into national law. To leave the participating Member States any room for discretion in implementing these rules would jeopardise the objectives of legal certainty and predictability.
4.5 Position of the United Kingdom, Ireland and Denmark
The United Kingdom and Ireland do not participate in cooperation in matters covered by Part Three, Title V, of the Treaty on the Functioning of the European Union unless, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and the
Treaty on the Functioning of the European Union, they give notice of their wish to participate. By virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not participating in the adoption of the proposed Regulation and it is neither bound by it nor subject to its application.
5. Budgetary impact, simplification and consistency with other Union policies
5.1 Budgetary impact
The proposal will have no impact on the Union budget.
5.2 Simplification
The proposal will bring about a simplification of administrative procedures both for citizens and for practitioners. In particular, the harmonisation of conflict-of-law rules will considerably simplify procedures by enabling them to determine the applicable law on the basis of a single set of rules replacing the existing national conflict-of-law rules of the participating Member States.
5.3 Consistency with other Union policies and with the Union's objectives
The proposal respects the fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union as general principles of Union law.
6. Comments on the articles
Article 1
The proposed Regulation applies to all situations where there is a conflict of laws, i.e. situations in which there are aspects of the case which take it outside the domestic social life of one country and which may involve several legal systems. It comes into play, therefore, only in international situations, such as, for example, those where the spouses are of different nationalities or live in different Member States or in a Member State of which at least one of them is not a national ('international couples').
The proposed rules on applicable law are limited to divorce and legal separation and do not apply to marriage annulment proceedings, for which both the autonomy of the parties and the choice of laws other than that of the court seised are deemed inappropriate. As far as rules on jurisdiction are concerned, marriage annulment, like divorce and legal separation, is covered by Regulation (EC) No 2201/2003.
Article 2
By virtue of Article 2, this is a universal Regulation, meaning that its uniform conflict rules can designate the law of a participating Member State, the law of a non-participating Member State, or the law of a State which is not a member of the European Union. This is a firmly-rooted principle of the law concerning conflict of laws which already exists in the 1980 Rome Convention, the conventions concluded within the framework of the Hague Conference, and the national conflict rules of the participating Member States. Safeguard clauses have been
introduced to prevent the application of foreign laws on divorce or legal separation which are incompatible with the common values of the European Union. Where the law of another Member State is designated, the European Judicial Network in civil and commercial matters can play a part in assisting the courts with regard to the content of foreign law.
Article 3
The vast majority of national conflict-of-law rules provide for only one solution in a given situation. The proposal seeks to afford the spouses greater flexibility by allowing them to choose the law applicable to divorce and legal separation. The only laws which may be chosen are those with which the spouses have a close connection by virtue of their habitual residence or their last common habitual residence if one of them still lives there, the nationality of one of the spouses, and the lex fori.
The same conflict-of-law rules should apply to legal separation and to divorce, since legal separation is in many cases a prerequisite for divorce. The participating Member States that recognise legal separation apply the same conflict-of-law rules to divorce and legal separation.
This increased party autonomy will improve legal certainty and predictability for the spouses. Certain formal requirements need to be respected in order to ensure that both spouses are aware of the consequences of their choice and to protect the weaker spouse. The Commission shares the European Parliament's opinion that it is necessary to prevent the parties' choice of applicable law from leading to application of a law that is contrary to fundamental rights and Union law. The text therefore limits the parties' choice to foreign laws on divorce or legal separation which are compatible with the common values of the European Union.
Article 4
In the absence of choice by the spouses, the applicable law would be determined on the basis of a scale of successive connecting factors, based in the first place on the habitual residence of the spouses. This uniform rule will ensure legal certainty and predictability. The introduction of harmonised conflict-of-laws rules should considerably reduce the risk of a rush to court, since any court seised in the participating Member States would apply the same law designated on the basis of common rules.
The fact that the rule is based in the first place on the habitual residence of the spouses and, failing that, on their last habitual residence if one of them still lives there will result in the law of the court seised being applied in the vast majority of cases (but not always, as in the case where one of the spouses returns to his or her home country and seises a court there in accordance with the rules on jurisdiction laid down by Regulation (EC) No 2201/2003). Cases in which a foreign law is applicable will therefore be very few in number.
Article 5
This provision contains a rule intended to avoid discrimination. In certain situations where the applicable law makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the court seised should apply.
Article 6
To allow renvoi would jeopardise the objective of legal certainty. Designating a law under uniform conflict-of-law rules consequently means designating the substantive rules of that law and not its rules of private international law.
Article 7
The mechanism of the public policy exception allows the court to disregard the rules of the foreign law designated by the conflict-of-law rule where the application of the foreign law in a given case would be contrary to the public policy of the State of the court seised. The word 'manifestly' means that use of the public policy exception must be exceptional.
Article 8
Where a State consists of several territorial units each with its own substantive law of divorce and legal separation, this Regulation must also apply to conflicts of laws between those territorial units so as to ensure legal certainty, foreseeability and the uniform application of European Union rules to all conflict situations.
Article 9
This provision ensures transparency for citizens of the rules applicable to marriage contracts in the participating Member States. The Commission will make this information publicly available on the website of the European Judicial Network in civil and commercial matters.
Article 10
This article relates to the instrument's temporal scope.
Article 11
The proposed provisions seek to strike an appropriate balance between, on the one hand, compliance with the international obligations of the participating Member States and, on the other, the objective of the construction of a genuine European area of justice. Paragraph 1 permits the participating Member States to continue to apply the conflict-of-law rules contained in the bilateral or multilateral agreements to which they are party when the Regulation is adopted. However, the coexistence of two parallel systems – the application by some participating Member States of the rules of the agreements they have ratified, and the application by the other participating Member States of the rules of the proposed Regulation – would run counter to the proper functioning of the European area of justice.
Articles 12 and 13
The articles on the instrument's revision, entry into force and application are standard provisions.