Explanatory Memorandum to COM(2016)106 - Jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)106 - Jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. |
|---|---|
| source | COM(2016)106  |
| date | 02-03-2016 |
1. Background to the proposal
1.1.General background
Article 67(1) of the Treaty on the Functioning of the European Union provides that the Union is to constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. Paragraph 4 of that article provides that the Union is to facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. Article 81 of the Treaty explicitly refers to measures aimed at ensuring the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases and the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction. Many instruments have already been adopted on this basis, in particular Regulation (EC) No 2201/2003 of 27 November 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. None of them, however, cover matrimonial property regimes.
The adoption of European legislation on matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. The programme on mutual recognition of decisions in civil and commercial matters adopted by the Council on 30 November 2000 1 provided for the drafting of an instrument on jurisdiction and the recognition and enforcement of decisions as regards rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple. The Hague programme 2 , which was adopted by the European Council on 4 and 5 November 2004, set the implementation of the mutual recognition programme as a top priority and called on the Commission to submit a Green Paper on the conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, and stressed the need to adopt legislation by 2011.
The Stockholm Programme, which was adopted by the European Council on 11 December 2009, also states that mutual recognition must be extended to matrimonial property regimes and the property consequences of the separation of unmarried couples.
In the 'EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights', adopted on 27 October 2010 3 , the Commission identified uncertainty surrounding the property rights of international couples as one of the main obstacles faced by EU citizens in their daily lives when they tried to exercise the rights the EU conferred on them across national borders. To remedy this, it announced that it would adopt in 2011 a proposal for legislation to make it easier for international couples (either married or registered partners) to know which courts had jurisdiction to deal with their property rights and which law applied to their property rights.
On 16 March 2011, the Commission adopted a proposal 4 for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and a proposal 5 for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships 6 .
The legal basis for the proposed Council Regulations was Article 81(3) of the Treaty on the Functioning of the European Union. The proposals related to judicial cooperation in civil matters covering ‘aspects relating to family law’. Under this legal basis measures are adopted by the Council acting unanimously after consulting the European Parliament. The European Parliament delivered its opinion on 10 September 2013 7 .
The Commission proposals were discussed in the Council Working Party on Civil Law Matters (Matrimonial property regimes and the property consequences of registered partnerships) until the end of 2014. In December 2014, the Council decided to grant a reflection period to those Member States which continued to have difficulties; this period should not last, however, more than one year. At its meeting of 3 December 2015, the Council concluded that no unanimity could be reached for the adoption of the proposals for regulations on matrimonial property regimes and the property consequences of registered partnerships and that therefore the objectives of cooperation in this area could not be attained within a reasonable period by the Union as a whole. The Council also noted that several Member States expressed their readiness to give positive consideration to the establishment of enhanced cooperation on the matters covered by the proposals.
From December 2015 to February 2016, 17 Member States 8 addressed a request to the Commission indicating that they wished to establish enhanced cooperation between themselves in the area of the property regimes of international couples and, specifically, of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, and asking the Commission to submit a proposal to the Council to that effect.
The proposal for a Council Decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships; this proposal for a Council Regulation on matrimonial property regimes and the parallel proposal for a Council Regulation on the property consequences of registered partnerships, both of which implement the enhanced cooperation and were adopted by the Commission at the same time, are the Commission's response to the request by 17 Member States (hereinafter referred to as the participating Member States). The proposal for a Council Decision contains a detailed assessment of the legal conditions governing, and the appropriateness of, the introduction of enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships.
1.2.Grounds for and objectives of the proposal
The increasing mobility of persons within an area without internal frontiers leads to a significant increase in the number of couples formed by nationals of different Member States who live in a Member State other than their own or acquire property in more than one Member State. A study carried out by the consortium ASSER-UCL in 2003 9 showed the large number of transnational couples within the Union and the practical and legal difficulties such couples face, both in the daily management of their property and in its division if the couple separate or one of its members dies. These difficulties often result from the great disparities between the applicable rules governing the property effects of marriage, both in substantive law and in private international law.
Because of the distinctive features of marriage and registered partnerships and the different legal consequences of these forms of union, the Commission is presenting two separate proposals for Regulations: one on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, and the other on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships. These two proposals are the implementing measures of the enhanced cooperation established in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships.
The purpose of this proposal is to establish a clear legal framework in the European Union for determining jurisdiction and the law applicable to matrimonial property regimes and to facilitate the circulation of decisions and instruments on this matter among Member States.
2. Result of the consultations – impact assessment
Before the 2011 Commission proposal was drawn up, a broad consultation exercise took place with the Member States, other Union institutions and the public. Following the 2003 study, on 17 July 2006 the Commission published a Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition 10 , and launched wide-ranging consultations on the subject. A group of experts, PRM/III, was set up by the Commission to draw up the proposal. The group was composed of experts representing the range of professions concerned and the different European legal traditions; it met five times between 2008 and 2010. The Commission also held a public hearing on 28 September 2009 involving some hundred participants. The debates confirmed the need for an EU instrument for matrimonial property regimes that covered in particular applicable law, jurisdiction and the recognition and enforcement of decisions. A meeting with national experts was held on 23 March 2010 to discuss the thrust of the proposal being drafted. Finally, the Commission conducted a joint impact study on the proposals for regulations on matrimonial property regimes and the property consequences of registered partnerships.
The two new proposals regarding matrimonial property regimes and the property consequences of registered partnerships contain solutions similar to those presented in the 2011 proposals taking into account the discussions in the Council and the European Parliament up to the end of 2015.
3. Legal aspects of the proposal
3.1.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 by unanimity after consulting the European Parliament.
A matrimonial property regime derives from the existence of a family relationship between the individuals involved. Matrimonial property regimes are closely linked with marriage so, even if they concern property relationships between spouses and between spouses and third parties, they must be considered as part of family law. They exist where a marriage exists and disappear when the marriage is dissolved (following a divorce or legal separation or the death of one of the spouses).
The aim of the proposal is to establish a comprehensive set of rules of international private law applicable to matrimonial property regimes. It therefore deals with matters of jurisdiction, applicable law and the recognition and enforcement of decisions in matrimonial property cases. The rules proposed are concerned only with cross-border cases. The cross-border requirement in Article 81(3) is consequently fulfilled. This proposal only concerns the property consequences of the marriage and does not define the institution of marriage nor does it impose the recognition of a marriage in another Member State.
3.2.Subsidiarity principle
The only way of achieving the proposal's objectives is through the adoption of common rules on matrimonial property regimes, rules which must be identical in all participating Member States in order to guarantee legal certainty and predictability for citizens. Unilateral action by Member States would therefore run counter to this objective. There are two international conventions of the Hague Conference on Private International Law relevant to this issue, namely the Convention of 17 July 1905 on conflict of laws relating to the effects of marriage on the rights and duties of spouses in their personal relationships and with regard to their estates, and the Convention of 14 March 1978 on the law applicable to matrimonial property regimes. However, only three Member States have ratified them and they do not offer the solutions needed to deal with the scale of the problems covered by this proposal, as revealed by the impact study and the public hearings. Given the nature and the scale of the problems experienced by Union citizens, the proposal's objectives can only be achieved at Union level.
3.3.Proportionality principle
The proposal complies with the principle of proportionality in that it is strictly limited to what is necessary to achieve its objectives. It does not try to harmonise the substantive laws of the Member States concerning matrimonial property regimes and does not affect the way in which the liquidation of matrimonial property regimes is taxed by Member States. The proposal will not entail any financial or administrative burdens on citizens and only a very limited additional burden on national authorities.
3.4.Impact on fundamental rights
In accordance with the strategy for the effective implementation of the Charter of Fundamental Rights by the European Union 11 , the Commission has checked that the proposal complies with the rights set out in the Charter.
It does not affect the right to respect for private and family life nor the right to marry and to found a family according to national laws, as provided for in Articles 7 and 9 of the Charter.
The right to property referred to in Article 17 of the Charter is strengthened. The predictability of the law applicable to the couple's property will in fact enable spouses to exercise their property rights more fully.
The Commission has also checked that the proposal complies with Article 9 of the Charter on the right to marry and the right to found a family in accordance with national laws, and with Article 21 of the Charter, which prohibits any discrimination.
Finally, the proposal would increase citizens' access to justice in the EU, in particular for married couples. It would facilitate implementation of Article 47 of the Charter, which guarantees the right to an effective remedy and to a fair trial. By setting out objective criteria for determining the court having jurisdiction, parallel proceedings and appeals precipitated by the most active party can be avoided.
3.5.Choice of instrument
The need for legal certainty and predictability calls for clear and uniform rules and requires that the legislation take the form of a regulation. The proposed rules on jurisdiction, applicable law and free circulation of decisions are set out clearly and in detail, requiring no transposition into national law. The objectives of legal certainty and predictability would be compromised if the Member States had discretion with regard to implementing the rules.
4. Budgetary impact, simplification and consistency with other Union policies
4.1.Budgetary impact
The proposal will have no impact on the Union budget.
4.2.Simplification
The harmonisation of the rules on jurisdiction will greatly simplify procedures by making it possible to determine the court with jurisdiction over a matrimonial property case on the basis of common rules. If courts seised with divorce proceedings, legal separation, annulment of the marriage or a succession case following the death of one of the spouses in application of existing EU legislation have their jurisdiction extended to related matrimonial property regime proceedings, citizens will be able to have the same court deal with all aspects of their situation.
The harmonisation of conflict-of-law rules will considerably simplify procedures by establishing which law is applicable on the basis of a single set of rules replacing the various national conflict-of-law rules of the participating Member States.
Finally, the rules proposed for the recognition and enforcement of court decisions will facilitate the movement of citizens between different Member States.
4.3.Consistency with other Union policies
This proposal is part of the Commission's efforts to dismantle the obstacles faced by EU citizens in their daily lives when they try to exercise the rights the EU confers on them, as outlined in the 2010 EU Citizenship Report referred to earlier.
5. Comments on the Articles
5.1.Chapter I: Scope and definitions
Contents
The notion of matrimonial property regime must be given an autonomous interpretation and embrace considerations of both the spouses' daily management of their property and the liquidation of their property regime as a result of the couple's separation or the death of one of the spouses.
To determine the areas that will be covered it proved preferable to compile a comprehensive list of matters excluded from the Regulation. Thus, matters already covered by existing EU regulations, such as maintenance obligations 12 , especially between spouses, and matters arising from the law of succession 13 , are excluded from the scope of the Regulation.
The Regulation does not affect the existence or validity of a marriage under national law or the recognition in one Member State of a marriage concluded in another Member State. It also does not affect matters of social security or the entitlement to rights to pension in case of divorce.
The Regulation does not concern the nature of rights in rem relating to a property, the classification of property and of rights, or the determination of the prerogatives of the holder of such rights.
The requirements to make an entry in the land register and the effects of an entry or failure to make an entry in this register are also excluded from the scope of the Regulation.
For the sake of consistency and to facilitate their understanding and uniform application, some definitions of terms used in this Regulation are common to other EU instruments in force.
The proposed definition of court includes authorities and legal professions (such as notaries) which exercise judicial functions or act by delegation of power by a court, so that their decisions are treated as court decisions for the purposes of recognition and enforcement in a Member State other than the Member State where they were delivered.
5.2.Chapter II: Jurisdiction
Legal proceedings in connection with matrimonial property regimes often arise from the liquidation of the property when the couple ceases to exist, either as a result of the death of one of the spouses or of their divorce, legal separation or marriage annulment.
The aim of this Regulation is to enable citizens to have their various related procedures handled by the courts of the same Member State. To this end, the Regulation seeks to ensure that the rules to determine the jurisdiction of the courts called on to deal with the property aspects of marriages are in line with existing rules in other Union instruments and, in particular, to concentrate jurisdiction on the matrimonial property regime in the Member State whose courts are handling the succession of a spouse or the divorce, legal separation or marriage annulment.
To ensure that, in the event of the death of one of the spouses, the competent court can handle both the succession of the deceased spouse and the liquidation of the matrimonial property regime, this article provides that the court having jurisdiction for the succession according to the rules laid down in Regulation (EU) No 650/2012 should also have jurisdiction to rule on the liquidation of the matrimonial property regime linked to the succession.
Similarly, the court with jurisdiction for divorce proceedings, legal separation or marriage annulment in accordance with Regulation (EC) 2201/2003 should also rule, in some instances if the spouses agree, on the liquidation of the matrimonial property regime arising from the divorce, legal separation or marriage annulment.
Article 6 provides for rules governing jurisdiction that would apply when matters of the matrimonial property regime are not linked to proceedings on succession or divorce, legal separation or marriage annulment (for example, when the spouses want to change their matrimonial property regime). A list of connecting factors, in order of precedence, would determine the Member State whose courts have jurisdiction to deal with the proceedings on the matrimonial property regime.
The proposed criteria include the habitual residence of the spouses, their last habitual residence if one of them still resides there or the habitual residence of the respondent; these widely used criteria frequently coincide with the location of the spouses' property. A final criterion is the common nationality of the spouses.
In such cases, in order to enhance predictability and the freedom to choose of the spouses, Article 7 would also allow the spouses to agree that the courts that should deal with matters of their property regime should be the courts of the Member State whose law applies to the matrimonial property regime or the courts of the Member State where the marriage was celebrated.
Exceptionally, the court of a Member State that has jurisidiction may decline such jurisdiction if the national law of its Member State does not recognise the marriage in question. In order to ensure the spouses' access to justice in such cases, the spouses can agree that the courts of the Member State whose law applies to the matrimonial property regime or the courts of the Member State where the marriage was celebrated will rule on the proceedings. Otherwise, the criteria laid down by Article 6 would determine the Member State whose courts should rule on the matter.
Where no Member State has jurisdiction in application of the previous articles, this article ensures access to justice for spouses and interested third parties before the courts of the Member State in which one or both of the spouses has immoveable property. In these cases, the courts would only rule in respect of the immoveable property located in that Member State.
5.3.Chapter III: Applicable law
The law that would apply to matters of matrimonial property regime can be the law of a Member State or the law of a non-Member State.
The option proposed in the Regulation is that of a single scheme: all the property of the spouses, regardless of its nature (moveable or immoveable) and location, would be subject to the same law, namely the law applicable to the matrimonial property regime.
Immoveable property has a special place in the property of couples, and one of the possible options would have been to make it subject to the law of the country in which it is located (lex situs), thus allowing the dismemberment of the law applicable to the matrimonial property regime. This solution is, however, fraught with difficulties, particularly when it comes to the liquidation of the matrimonial property, in that it would lead to an undesirable fragmentation of the unity of the matrimonial property (while the liabilities would remain in a single scheme), and to the application of different laws to different properties within the matrimonial property regime. The Regulation therefore provides that the law applicable to matrimonial property, whether chosen by the spouses or, in the absence of any such choice, determined under other provisions, will apply to all the couple's property, moveable or immoveable, irrespective of its location.
During the consultations a broad consensus emerged in favour of according the parties a degree of freedom in choosing the law applicable to their matrimonial property regime in order to facilitate the spouses' management of their property. This option should be clearly regulated to prevent the law chosen from having little relation to the couple's real situation or past history: the law chosen must therefore be the law of the habitual residence or of the nationality of the spouses or future spouses or of one of them.
In addition to the possibility for the spouses to choose the law applicable at the time of their marriage, this article makes provision for making such a choice later. Similarly, spouses having chosen the applicable law at the time of their marriage may later decide to change it. If the spouses decide to change the law applicable to their property regime, they can only choose one of the laws that they could have chosen at the time of their marriage.
Only a voluntary change of applicable law is possible. The Regulation does not provide for any automatic change of applicable law without the parties expressing their consent to such change or without them having been notified, in order to avoid legal uncertainty.
Furthermore, to prevent a change of the law applicable to the matrimonial property regime from having undesirable effects for the spouses, such a change is effective only in the future, unless the spouses decide to make it retrospective.
The rights of third parties whose interests might be prejudiced by a change of the law applicable to the couple's matrimonial property regime are protected: the Regulation provides that the effects of a retroactive change of the law applicable to the matrimonial property regime cannot adversely affect the rights of third parties.
These provisions set out rules on the procedures to follow by spouses to choose the applicable law and to agree on the matrimonial property regime through a matrimonial property agreement.
When spouses do not choose the law applicable to their matrimonial property regime, it is important to have common rules in the participating Member States to determine what law is applicable in the absence of choice by the spouses. The applicable law would be identified using a list of objective connecting factors in order of precedence, which would ensure predictability both for the spouses and for third parties. These criteria are designed to reconcile the life actually lived by the couple, especially the establishment of their first common habitual residence, and the need to be able to easily determine the law applicable to their matrimonial property regime. However, exceptionally, one of the spouses can ask a court that the law applicable should be the law of the State where the spouses had their last common habitual residence.
The Regulation lists some of the matters that would be governed by the law applicable to the matrimonial property regime. Such matters include the liquidation of the property and also the effects of the matrimonial property regime on the relationships between a spouse and a third party. However, in order to protect the rights of third parties, the Regulation provides that a spouse cannot invoke the applicable law against a third party in a dispute unless the third party knew or should have known the law applicable to the property regime. The Regulation specifies the cases in which it would be considered that the third party knew or should have known the applicable law that governs the matrimonial property regime.
To take account of national rules for the protection of the family home, this provision allows a Member State to set aside the application of a foreign law in favour of its own. Accordingly, to protect the family home, a Member State where the family home is located may apply its own rules for the protection of the family home. Exceptionally, this Member State may apply its own law to all persons living on its territory in preference to the law normally applicable or that of a marriage agreement concluded in another Member State.
5.4.Chapter IV: Recognition, enforceability and enforcement
The proposed Regulation provides for the free circulation of decisions, authentic instruments and court settlements concerning matrimonial property regimes. It would thus introduce mutual recognition based on the mutual trust arising out of the integration of the Member States within the Union.
This free circulation would take the form of a uniform procedure for the recognition and enforcement of decisions, authentic acts and legal transactions originating in another Member State. The procedure replaces the national procedures currently in force in the different Member States. The grounds for non-recognition or refusal to enforce are also harmonised at Union level or reduced to the absolute minimum. They replace the varied, and often broader, grounds that currently exist at national level.
The proposed rules on the recognition and enforcement of decisions are in line with those contained in Regulation No 650/2012 on succession. They therefore refer to the exequatur procedure laid down in that Regulation. This means that any decision of a Member State would be recognised in other Member States without any special procedure and that, to have a decision enforced in another Member State, applicants would have to follow a uniform procedure in the Member State of enforcement to obtain a declaration of enforceability. The procedure is unilateral and is initially confined to a verification of documents. Only at a later stage, if the defendant objects, would the judge proceed to consider possible grounds for refusal. This offers adequate protection of the rights of defendants.
These rules are a major step forward compared with the current situation. At present, the recognition and enforcement of decisions is governed by the Member States' national laws or bilateral agreements between some Member States. The procedures to be followed vary with the Member States concerned, as do the documents required for obtaining a declaration of enforceability and the grounds on which foreign decisions may be rejected.
As explained earlier, this Regulation is a first step in the area of matrimonial property regimes and it concerns family law (see point 3.1). Given its specific circumstances, the free circulation of decisions is subject to the exequatur procedure. Nevertheless, the removal of intermediate proceedings (exequatur) could, as in other areas, be considered at a later stage, after an evaluation of the application of the rules in this Regulation and the development of judicial cooperation on matrimonial property regimes and related areas, notably the Brussels IIa Regulation 14 .
The acts of authorities exercising their powers by delegation in accordance with the definition of a court in Article 3 of this Regulation would be treated as court decisions and thus covered by the provisions on recognition and enforcement under this chapter.
Given the practical importance of authentic instruments for matrimonial property regimes and in order to ensure the consistency of this Regulation with other EU instruments, this Regulation must ensure their acceptancefor the purposes of their free circulation.
This acceptance means that they will enjoy the same evidentiary effect in respect of the contents of the instrument and the facts contained therein, and the same presumption of authenticity and enforceability as in the country of origin.