# CE2012169EN.01020501.xml

| 15.6.2012 | EN | Official Journal of the European Union | CE 169/205 |
| --- | --- | --- | --- |

15.6.2012

EN

Official Journal of the European Union

CE 169/205

---

Wednesday 15 December 2010Law applicable to divorce and legal separation *

P7_TA(2010)0477

European Parliament legislative resolution of 15 December 2010 on the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (COM(2010)0105 – C7-0315/2010 – 2010/0067(CNS))

2012/C 169 E/41

(Special legislative procedure – consultation – enhanced cooperation)

The European Parliament,

The European Parliament

| — | having regard to the Commission proposal to the Council (COM(2010)0105), |
| --- | --- |

—

having regard to the Commission proposal to the Council (COM(2010)0105),

| — | having regard to Article 81(3) of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0315/2010), |
| --- | --- |

—

having regard to Article 81(3) of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0315/2010),

| — | having regard to its position of 16 June 2010 (1), giving its consent to the draft Council decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation, |
| --- | --- |

—

having regard to its position of 16 June 2010 (1), giving its consent to the draft Council decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation,

1

| — | having regard to Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2), |
| --- | --- |

—

having regard to Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2),

2

| — | having regard to the opinion of the European Economic and Social Committee of 14 July 2010, |
| --- | --- |

—

having regard to the opinion of the European Economic and Social Committee of 14 July 2010,

| — | having regard to Rules 55 and 74g(3) of its Rules of Procedure, |
| --- | --- |

—

having regard to Rules 55 and 74g(3) of its Rules of Procedure,

| — | having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women’s Rights and Gender Equality (A7-0360/2010), |
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—

having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women’s Rights and Gender Equality (A7-0360/2010),

| 1. | Approves the Commission proposal as amended; |
| --- | --- |

1.

Approves the Commission proposal as amended;

| 2. | Calls on the Commission to alter its proposal accordingly, pursuant to Article 293(2) of the Treaty on the Functioning of the European Union; |
| --- | --- |

2.

Calls on the Commission to alter its proposal accordingly, pursuant to Article 293(2) of the Treaty on the Functioning of the European Union;

| 3. | Calls on the Commission to submit a proposal for amendment of Regulation (EC) No 2201/2003, limited to the addition of a clause on forum necessitatis, as a matter of great urgency before the promised general review of that Regulation; |
| --- | --- |

3.

Calls on the Commission to submit a proposal for amendment of Regulation (EC) No 2201/2003, limited to the addition of a clause on forum necessitatis, as a matter of great urgency before the promised general review of that Regulation;

forum necessitatis

| 4. | Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament; |
| --- | --- |

4.

Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

| 5. | Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially; |
| --- | --- |

5.

Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

| 6. | Instructs its President to forward its position to the Council, the Commission and the national parliaments. |
| --- | --- |

6.

Instructs its President to forward its position to the Council, the Commission and the national parliaments.

| TEXT PROPOSED BY THE COMMISSION | AMENDMENT |
| --- | --- |
| Amendment 1 |
| Proposal for a regulation


  Citation 2 |
| Having regard to Council Decision
  [...]
  of
  [...]
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (3), | Having regard to Council Decision
  2010/405/EU
  of
  12 July 2010
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (4), |
| Amendment 2 |
| Proposal for a regulation


  Recital 1 |
| (1) | The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union
  must
  adopt measures relating to judicial cooperation in civil matters having cross-border implications. |

TEXT PROPOSED BY THE COMMISSION

AMENDMENT

Amendment 1

Amendment 1

Proposal for a regulation

Proposal for a regulation

Citation 2

Citation 2

Having regard to Council Decision
  [...]
  of
  [...]
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (3),

[...]

[...]

3

Having regard to Council Decision
  2010/405/EU
  of
  12 July 2010
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (4),

2010/405/EU

12 July 2010

4

Amendment 2

Amendment 2

Proposal for a regulation

Proposal for a regulation

Recital 1

Recital 1

(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union
  must
  adopt measures relating to judicial cooperation in civil matters having cross-border implications.

must

| (1) | The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union
  is to
  adopt measures relating to judicial cooperation in civil matters having cross-border implications
  , particularly when necessary for the proper functioning of the internal market
  . |
| --- | --- |

(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union
  is to
  adopt measures relating to judicial cooperation in civil matters having cross-border implications
  , particularly when necessary for the proper functioning of the internal market
  .

is to

, particularly when necessary for the proper functioning of the internal market

Amendment 3

Amendment 3

Proposal for a regulation

Proposal for a regulation

Recital 2

Recital 2

| (2) | Pursuant to Article 81
  (3)
  of the Treaty on the Functioning of the European Union, the
  Council is to adopt
  measures
  concerning family law with cross-border implications
  . |
| --- | --- |

(2)

Pursuant to Article 81
  (3)
  of the Treaty on the Functioning of the European Union, the
  Council is to adopt
  measures
  concerning family law with cross-border implications
  .

(3)

Council is to adopt

concerning family law with cross-border implications

| (2) | Pursuant to Article 81 of the Treaty on the Functioning of the European Union, the measures
  in question are to include those aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws
  . |
| --- | --- |

(2)

Pursuant to Article 81 of the Treaty on the Functioning of the European Union, the measures
  in question are to include those aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws
  .

in question are to include those aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws

Amendment 4

Amendment 4

Proposal for a regulation

Proposal for a regulation

Recital 6

Recital 6

| (6) | Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended 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 for that purpose
  . |
| --- | --- |

(6)

Bulgaria, Greece, Spain, France, Italy, Luxembourg, Hungary, Austria, Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended 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 for that purpose
  .

and asking the Commission to submit a proposal to the Council for that purpose

| (6) | Belgium,
  Bulgaria,
  Germany,
  Greece, Spain, France, Italy,
  Latvia,
  Luxembourg, Hungary,
  Malta,
  Austria,
  Portugal
  , Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters.
  On 3 March 2010 Greece withdrew its request. |
| --- | --- |

(6)

Belgium,
  Bulgaria,
  Germany,
  Greece, Spain, France, Italy,
  Latvia,
  Luxembourg, Hungary,
  Malta,
  Austria,
  Portugal
  , Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters.
  On 3 March 2010 Greece withdrew its request.

Belgium,

Germany,

Latvia,

Malta,

Portugal

On 3 March 2010 Greece withdrew its request.

Amendment 5

Amendment 5

Proposal for a regulation

Proposal for a regulation

Recital 7

Recital 7

| (7) | On
  [...]
  the Council adopted Decision
  [...]
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. |
| --- | --- |

(7)

On
  [...]
  the Council adopted Decision
  [...]
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

[...]

[...]

| (7) | On
  12 July 2010
  the Council adopted Decision
  2010/405/EU
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. |
| --- | --- |

(7)

On
  12 July 2010
  the Council adopted Decision
  2010/405/EU
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

12 July 2010

2010/405/EU

Amendment 6

Amendment 6

Proposal for a regulation

Proposal for a regulation

Recital 8

Recital 8

| (8) | According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions. |
| --- | --- |

(8)

According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions.

| (8) | According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions.
  The Commission and the Member States participating in enhanced cooperation should ensure that they promote participation by as many Member States as possible. This Regulation should be binding in its entirety and directly applicable only in the participating Member States in accordance with the Treaties. |
| --- | --- |

(8)

According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions.
  The Commission and the Member States participating in enhanced cooperation should ensure that they promote participation by as many Member States as possible. This Regulation should be binding in its entirety and directly applicable only in the participating Member States in accordance with the Treaties.

The Commission and the Member States participating in enhanced cooperation should ensure that they promote participation by as many Member States as possible. This Regulation should be binding in its entirety and directly applicable only in the participating Member States in accordance with the Treaties.

Amendment 7

Amendment 7

Proposal for a regulation

Proposal for a regulation

Recital 9 a (new)

Recital 9 a (new)

| (9a) | The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-law rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions on issues such as legal capacity and the validity of a marriage, and on matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures, should be determined by the conflict-of-law rules applicable in the participating Member State concerned. |
| --- | --- |

(9a)

(9a)

The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-law rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions on issues such as legal capacity and the validity of a marriage, and on matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures, should be determined by the conflict-of-law rules applicable in the participating Member State concerned.

The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-law rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions on issues such as legal capacity and the validity of a marriage, and on matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures, should be determined by the conflict-of-law rules applicable in the participating Member State concerned.

Amendment 8

Amendment 8

Proposal for a regulation

Proposal for a regulation

Recital 10

Recital 10

| (10) | In order to clearly delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified. |
| --- | --- |

(10)

In order to clearly delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified.

to

| (10) | In order clearly to delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified
  in accordance with Article 1(2)
  . |
| --- | --- |

(10)

In order clearly to delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation must be specified
  in accordance with Article 1(2)
  .

to

in accordance with Article 1(2)

Amendment 9

Amendment 9

Proposal for a regulation

Proposal for a regulation

Recital 10 a (new)

Recital 10 a (new)

| (10a) | This Regulation should be universal, in the sense that its uniform conflict-of-law rules may 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. |
| --- | --- |

(10a)

(10a)

This Regulation should be universal, in the sense that its uniform conflict-of-law rules may 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 Regulation should be universal, in the sense that its uniform conflict-of-law rules may 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.

Amendment 10

Amendment 10

Proposal for a regulation

Proposal for a regulation

Recital 11

Recital 11

| (11) | This Regulation should apply irrespective of the nature of the court or tribunal seised. |
| --- | --- |

(11)

This Regulation should apply irrespective of the nature of the court or tribunal seised.

| (11) | This Regulation should apply irrespective of the nature of the court or tribunal seised.
  Where applicable, a court should be deemed to be seised in accordance with Regulation (EC) No 2201/2003. |
| --- | --- |

(11)

This Regulation should apply irrespective of the nature of the court or tribunal seised.
  Where applicable, a court should be deemed to be seised in accordance with Regulation (EC) No 2201/2003.

Where applicable, a court should be deemed to be seised in accordance with Regulation (EC) No 2201/2003.

Amendment 11

Amendment 11

Proposal for a regulation

Proposal for a regulation

Recital 12

Recital 12

| (12) | In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5)

  can
  play a part in assisting the courts with regard to the content of foreign law. |
| --- | --- |

(12)

In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5)

  can
  play a part in assisting the courts with regard to the content of foreign law.

might

5

can

| (12) | In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law may apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5)

  , as amended by Decision No 568/2009/EC of 18 June 2009 (6), could
  play a part in assisting the courts with regard to the content of foreign law. |
| --- | --- |

(12)

In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law may apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5)

  , as amended by Decision No 568/2009/EC of 18 June 2009 (6), could
  play a part in assisting the courts with regard to the content of foreign law.

may

5

, as amended by Decision No 568/2009/EC of 18 June 2009 (6

Amendment 12

Amendment 12

Proposal for a regulation

Proposal for a regulation

Recital 13

Recital 13

| (13) | Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation.
  Such possibility should not extend to marriage annulment, which is closely linked to the conditions for the validity of marriage, and for which autonomy on the part of the parties is inappropriate. |
| --- | --- |

(13)

Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation.
  Such possibility should not extend to marriage annulment, which is closely linked to the conditions for the validity of marriage, and for which autonomy on the part of the parties is inappropriate.

Such possibility should not extend to marriage annulment, which is closely linked to the conditions for the validity of marriage, and for which autonomy on the part of the parties is inappropriate.

| (13) | Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation. |
| --- | --- |

(13)

Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation.

Amendment 13

Amendment 13

Proposal for a regulation

Proposal for a regulation

Recital 14

Recital 14

| (14) | Spouses should be able to choose the law of a country with which they have a special connection or the
  lex fori
  as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights
  enshrined
  in the Treaties and the Charter of Fundamental Rights of the European Union.
  The possibility of choosing the law applicable to divorce and legal separation should not harm the superior interests of the child. |
| --- | --- |

(14)

Spouses should be able to choose the law of a country with which they have a special connection or the
  lex fori
  as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights
  enshrined
  in the Treaties and the Charter of Fundamental Rights of the European Union.
  The possibility of choosing the law applicable to divorce and legal separation should not harm the superior interests of the child.

lex fori

enshrined

The possibility of choosing the law applicable to divorce and legal separation should not harm the superior interests of the child.

| (14) | Spouses should be able to choose the law of a country with which they have a special connection or the
  law of the forum
  as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights
  recognised
  in the Treaties and the Charter of Fundamental Rights of the European Union. |
| --- | --- |

(14)

Spouses should be able to choose the law of a country with which they have a special connection or the
  law of the forum
  as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights
  recognised
  in the Treaties and the Charter of Fundamental Rights of the European Union.

law of the forum

recognised

Amendment 14

Amendment 14

Proposal for a regulation

Proposal for a regulation

Recital 15

Recital 15

| (15) | Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by
  Council
  Decision 2001/470/EC. |
| --- | --- |

(15)

Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by
  Council
  Decision 2001/470/EC.

Council

| (15) | Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Decision 2001/470/EC
  , as amended by Decision No 568/2009/EC
  . |
| --- | --- |

(15)

Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Decision 2001/470/EC
  , as amended by Decision No 568/2009/EC
  .

, as amended by Decision No 568/2009/EC

Amendment 15

Amendment 15

Proposal for a regulation

Proposal for a regulation

Recital 15 a (new)

Recital 15 a (new)

| (15a) | If the spouses are unable to agree on the applicable law, they should complete a mediation procedure including at least one consultation with an authorised mediator. |
| --- | --- |

(15a)

(15a)

If the spouses are unable to agree on the applicable law, they should complete a mediation procedure including at least one consultation with an authorised mediator.

If the spouses are unable to agree on the applicable law, they should complete a mediation procedure including at least one consultation with an authorised mediator.

Amendment 16

Amendment 16

Proposal for a regulation

Proposal for a regulation

Recital 16

Recital 16

| (16) | The informed choice of the
  two
  spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the
  two
  spouses. Hence judges in the Member States should be aware of the importance of an informed choice on the part of the
  two
  spouses concerning the legal implications of the choice-of-law agreement concluded. |
| --- | --- |

(16)

The informed choice of the
  two
  spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the
  two
  spouses. Hence judges in the Member States should be aware of the importance of an informed choice on the part of the
  two
  spouses concerning the legal implications of the choice-of-law agreement concluded.

two

two

two

| (16) | The informed choice of the spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the spouses. Hence judges in the
  participating
  Member States should be aware of the importance of an informed choice on the part of the spouses concerning the legal implications of the choice-of-law agreement concluded. |
| --- | --- |

(16)

The informed choice of the spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the spouses. Hence judges in the
  participating
  Member States should be aware of the importance of an informed choice on the part of the spouses concerning the legal implications of the choice-of-law agreement concluded.

participating

Amendment 17

Amendment 17

Proposal for a regulation

Proposal for a regulation

Recital 17

Recital 17

| (17) | Certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence lays down additional formal rules, those rules
  must
  be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract. |
| --- | --- |

(17)

Certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence lays down additional formal rules, those rules
  must
  be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract.

must

| (17) | Rules on material and formal validity should be defined so that the informed choice of the spouses is facilitated and that their consent is respected with a view to ensuring legal certainty as well as better access to justice. As far as formal validity is concerned,
  certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence
  at the time the agreement is concluded
  lays down additional formal rules, those rules
  should
  be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract.
  If, at the time the agreement is concluded, the spouses are habitually resident in different participating Member States which lay down different formal rules, compliance with the formal rules of one of those States would suffice. If, at the time the agreement is concluded, only one of the spouses is habitually resident in a participating Member State which lays down additional formal rules, those rules should be complied with. |
| --- | --- |

(17)

Rules on material and formal validity should be defined so that the informed choice of the spouses is facilitated and that their consent is respected with a view to ensuring legal certainty as well as better access to justice. As far as formal validity is concerned,
  certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence
  at the time the agreement is concluded
  lays down additional formal rules, those rules
  should
  be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract.
  If, at the time the agreement is concluded, the spouses are habitually resident in different participating Member States which lay down different formal rules, compliance with the formal rules of one of those States would suffice. If, at the time the agreement is concluded, only one of the spouses is habitually resident in a participating Member State which lays down additional formal rules, those rules should be complied with.

Rules on material and formal validity should be defined so that the informed choice of the spouses is facilitated and that their consent is respected with a view to ensuring legal certainty as well as better access to justice. As far as formal validity is concerned,

at the time the agreement is concluded

should

If, at the time the agreement is concluded, the spouses are habitually resident in different participating Member States which lay down different formal rules, compliance with the formal rules of one of those States would suffice. If, at the time the agreement is concluded, only one of the spouses is habitually resident in a participating Member State which lays down additional formal rules, those rules should be complied with.

Amendment 19

Amendment 19

Proposal for a regulation

Proposal for a regulation

Recital 19

Recital 19

| (19) | Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which 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 considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned.
  These
  connecting factors
  have been
  chosen
  so that the
  divorce or legal separation
  proceeding is
  governed by a law with which the spouses have a close connection
  , and they are based first and foremost on the law of the spouses’ habitual residence
  . |
| --- | --- |

(19)

Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which 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 considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned.
  These
  connecting factors
  have been
  chosen
  so that the
  divorce or legal separation
  proceeding is
  governed by a law with which the spouses have a close connection
  , and they are based first and foremost on the law of the spouses’ habitual residence
  .

These

have been

so that the

proceeding is

, and they are based first and foremost on the law of the spouses’ habitual residence

| (19) | Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which 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 considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-law rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned.
  Such
  connecting factors
  should be
  chosen
  in such a way as to ensure that proceedings relating to
  divorce or legal separation
  are
  governed by a law with which the spouses have a close connection. |
| --- | --- |

(19)

Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which 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 considers more favourable to his or her own interests, this Regulation should introduce harmonised conflict-of-law rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned.
  Such
  connecting factors
  should be
  chosen
  in such a way as to ensure that proceedings relating to
  divorce or legal separation
  are
  governed by a law with which the spouses have a close connection.

Such

should be

in such a way as to ensure that proceedings relating to

are

Amendment 20

Amendment 20

Proposal for a regulation

Proposal for a regulation

Recital 19 a (new)

Recital 19 a (new)

| (19a) | Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be determined in accordance with national law, in full observance of the general principles of the European Union. |
| --- | --- |

(19a)

(19a)

Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be determined in accordance with national law, in full observance of the general principles of the European Union.

Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be determined in accordance with national law, in full observance of the general principles of the European Union.

Amendment 21

Amendment 21

Proposal for a regulation

Proposal for a regulation

Recital 19 b (new)

Recital 19 b (new)

| (19b) | Where the court is seised of an application to convert a legal separation into divorce and the parties have not made any choice as to the law applicable, the law which applied to the legal separation should also apply to the divorce. Such continuity would promote predictability for the parties and increase legal certainty. If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-law rules which apply in the absence of a choice by the parties. This should not prevent the spouses from seeking divorce on the basis of other rules laid down in this Regulation. |
| --- | --- |

(19b)

(19b)

Where the court is seised of an application to convert a legal separation into divorce and the parties have not made any choice as to the law applicable, the law which applied to the legal separation should also apply to the divorce. Such continuity would promote predictability for the parties and increase legal certainty. If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-law rules which apply in the absence of a choice by the parties. This should not prevent the spouses from seeking divorce on the basis of other rules laid down in this Regulation.

Where the court is seised of an application to convert a legal separation into divorce and the parties have not made any choice as to the law applicable, the law which applied to the legal separation should also apply to the divorce. Such continuity would promote predictability for the parties and increase legal certainty. If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-law rules which apply in the absence of a choice by the parties. This should not prevent the spouses from seeking divorce on the basis of other rules laid down in this Regulation.

Amendment 22

Amendment 22

Proposal for a regulation

Proposal for a regulation

Recital 20

Recital 20

| (20) | In certain situations, such as where the applicable law makes no provision for divorce or where it 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 nevertheless apply. |
| --- | --- |

(20)

In certain situations, such as where the applicable law makes no provision for divorce or where it 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 nevertheless apply.

| (20) | In certain situations, such as where the applicable law makes no provision for divorce or where it 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 nevertheless apply.
  This should, however, be without prejudice to the public policy clause (ordre public). |
| --- | --- |

(20)

In certain situations, such as where the applicable law makes no provision for divorce or where it 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 nevertheless apply.
  This should, however, be without prejudice to the public policy clause (ordre public).

This should, however, be without prejudice to the public policy clause (ordre public).

Amendment 23

Amendment 23

Proposal for a regulation

Proposal for a regulation

Recital 21

Recital 21

| (21) | Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard the law of another
  Member
  State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination. |
| --- | --- |

(21)

Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard the law of another
  Member
  State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.

Member

| (21) | Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of
  a provision of
  foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard
  a provision of
  the law of another State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination. |
| --- | --- |

(21)

Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of
  a provision of
  foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public-policy exception in order to disregard
  a provision of
  the law of another State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.

a provision of

a provision of

Amendment 24

Amendment 24

Proposal for a regulation

Proposal for a regulation

Recital 21 a (new)

Recital 21 a (new)

| (21a) | Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not provide for divorce, this should be interpreted as meaning that the law of that Member State does not encompass the institution of divorce. In such a case, the court should not be obliged to pronounce a decree of divorce by virtue of this Regulation. Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted as meaning inter alia that such a marriage does not exist under the law of that Member State. In such a case, the court should not be obliged to pronounce a decree of divorce or order a legal separation by virtue of this Regulation. |
| --- | --- |

(21a)

(21a)

Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not provide for divorce, this should be interpreted as meaning that the law of that Member State does not encompass the institution of divorce. In such a case, the court should not be obliged to pronounce a decree of divorce by virtue of this Regulation. Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted as meaning inter alia that such a marriage does not exist under the law of that Member State. In such a case, the court should not be obliged to pronounce a decree of divorce or order a legal separation by virtue of this Regulation.

Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not provide for divorce, this should be interpreted as meaning that the law of that Member State does not encompass the institution of divorce. In such a case, the court should not be obliged to pronounce a decree of divorce by virtue of this Regulation. Where this Regulation refers to the circumstance that the law of the participating Member State whose court is seised does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted as meaning inter alia that such a marriage does not exist under the law of that Member State. In such a case, the court should not be obliged to pronounce a decree of divorce or order a legal separation by virtue of this Regulation.

Amendment 25

Amendment 25

Proposal for a regulation

Proposal for a regulation

Recital 22

Recital 22

| (22) | Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States. |
| --- | --- |

(22)

Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States.

| (22) | Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States
  , or the extent to which this Regulation applies to different categories of persons of those States and participating Member States
  . |
| --- | --- |

(22)

Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States
  , or the extent to which this Regulation applies to different categories of persons of those States and participating Member States
  .

, or the extent to which this Regulation applies to different categories of persons of those States and participating Member States

Amendment 26

Amendment 26

Proposal for a regulation

Proposal for a regulation

Recital 22 a (new)

Recital 22 a (new)

| (22a) | In the absence of rules designating the applicable law, spouses choosing the law of the State of the nationality of one of them should at the same time indicate, where the State whose law is chosen comprises several territorial units each of which has its own system of law or a set of rules in respect of divorce, which territorial unit’s law they have agreed upon. |
| --- | --- |

(22a)

(22a)

In the absence of rules designating the applicable law, spouses choosing the law of the State of the nationality of one of them should at the same time indicate, where the State whose law is chosen comprises several territorial units each of which has its own system of law or a set of rules in respect of divorce, which territorial unit’s law they have agreed upon.

In the absence of rules designating the applicable law, spouses choosing the law of the State of the nationality of one of them should at the same time indicate, where the State whose law is chosen comprises several territorial units each of which has its own system of law or a set of rules in respect of divorce, which territorial unit’s law they have agreed upon.

Amendment 29

Amendment 29

Proposal for a regulation

Proposal for a regulation

Article 1 – paragraph 1a (new)

Article 1 – paragraph 1a (new)

1a.
     
  This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings:

1a.

This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings:

| (a) | the legal capacity of natural persons; |
| --- | --- |

(a)

(a)

the legal capacity of natural persons;

the legal capacity of natural persons;

| (b) | the existence, validity or recognition of a marriage; |
| --- | --- |

(b)

(b)

the existence, validity or recognition of a marriage;

the existence, validity or recognition of a marriage;

| (c) | the annulment of a marriage; |
| --- | --- |

(c)

(c)

the annulment of a marriage;

the annulment of a marriage;

| (d) | the name of the spouses; |
| --- | --- |

(d)

(d)

the name of the spouses;

the name of the spouses;

| (e) | the property consequences of the marriage; |
| --- | --- |

(e)

(e)

the property consequences of the marriage;

the property consequences of the marriage;

| (f) | parental responsibility; |
| --- | --- |

(f)

(f)

parental responsibility;

parental responsibility;

| (g) | maintenance obligations; |
| --- | --- |

(g)

(g)

maintenance obligations;

maintenance obligations;

| (h) | trusts or successions. |
| --- | --- |

(h)

(h)

trusts or successions.

trusts or successions.

Amendment 30

Amendment 30

Proposal for a regulation

Proposal for a regulation

Article 1 – paragraph 2

Article 1 – paragraph 2

2.   For the purposes of this Regulation, ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Council Decision
  [...]
  of
  [...]
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

[...]

[...]

2.   For the purposes of this Regulation, ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Council Decision
  2010/405/EU
  of
  12 July 2010
  authorising enhanced cooperation in the area of the law applicable to divorce and legal separation
  , or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union
  .

2010/405/EU

12 July 2010

, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union

Amendment 31

Amendment 31

Proposal for a regulation

Proposal for a regulation

Article 1 a (new)

Article 1 a (new)

Article 1a

Article 1a

Relationship with Regulation (EC) No 2201/2003

Relationship with Regulation (EC) No 2201/2003

This Regulation shall not affect the application of Regulation (EC) No 2201/2003.

This Regulation shall not affect the application of Regulation (EC) No 2201/2003.

Amendment 32

Amendment 32

Proposal for a regulation

Proposal for a regulation

Article 1 b (new)

Article 1 b (new)

Article 1b

Article 1b

Definition

Definition

For the purposes of this Regulation, the term ‘court’ shall cover all authorities in the participating Member States having jurisdiction in the matters falling within the scope of this Regulation.

For the purposes of this Regulation, the term ‘court’ shall cover all authorities in the participating Member States having jurisdiction in the matters falling within the scope of this Regulation.

Amendment 34

Amendment 34

Proposal for a regulation

Proposal for a regulation

Article 3 – paragraph 1 – introductory wording

Article 3 – paragraph 1 – introductory wording

1.   The spouses may
  choose by mutual agreement
  the law applicable to divorce and legal separation, provided that
  such law is in conformity with the fundamental rights defined in the Treaties and in the Charter of Fundamental Rights of the European Union and with the principle of public policy, from among
  the following laws:

choose by mutual agreement

such law is in conformity with the fundamental rights defined in the Treaties and in the Charter of Fundamental Rights of the European Union and with the principle of public policy, from among

1.   The spouses may
  agree to designate
  the law applicable to divorce and legal separation, provided that
  it is one of
  the following laws:

agree to designate

it is one of

Amendment 39

Amendment 39

Proposal for a regulation

Proposal for a regulation

Article 3 – paragraph 3

Article 3 – paragraph 3

3.
     
  The agreement referred to in paragraph 2 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.

3.

The agreement referred to in paragraph 2 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.

However, if the law of the participating Member State in which the two spouses have their habitual residence at the time of conclusion of the agreement lays down additional formal requirements for this type of agreement, those requirements shall apply. If the spouses are habitually resident in different participating Member States and the laws of those Member States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.

However, if the law of the participating Member State in which the two spouses have their habitual residence at the time of conclusion of the agreement lays down additional formal requirements for this type of agreement, those requirements shall apply. If the spouses are habitually resident in different participating Member States and the laws of those Member States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.

3.
     
  If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.

3.

If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.

Amendment 40

Amendment 40

Proposal for a regulation

Proposal for a regulation

Article 3 – paragraph 4

Article 3 – paragraph 4

4.
     
  If the lex fori so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the lex fori.

4.

If the lex fori so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the lex fori.

deleted

deleted

Amendment 41

Amendment 41

Proposal for a regulation

Proposal for a regulation

Article 3 a (new)

Article 3 a (new)

Article 3a

Article 3a

Consent and material validity

Consent and material validity

1.
     
  The existence and validity of an agreement on choice of law or of any term thereof shall be determined by the law which would govern it under this Regulation if the agreement or term were valid.

1.

The existence and validity of an agreement on choice of law or of any term thereof shall be determined by the law which would govern it under this Regulation if the agreement or term were valid.

2.
     
  Nevertheless, a spouse, in order to establish that he or she did not consent, may rely on the law of the country in which he or she has his or her habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his or her conduct in accordance with the law specified in paragraph 1.

2.

Nevertheless, a spouse, in order to establish that he or she did not consent, may rely on the law of the country in which he or she has his or her habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his or her conduct in accordance with the law specified in paragraph 1.

Amendment 42

Amendment 42

Proposal for a regulation

Proposal for a regulation

Article 3 b (new)

Article 3 b (new)

Article 3b

Article 3b

Formal validity

Formal validity

1.
     
  The agreement referred to in Article 3(1) and (2) shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.

1.

The agreement referred to in Article 3(1) and (2) shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.

2.
     
  However, if the law of the participating Member State in which the spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for agreements of that type, those requirements shall apply.

2.

However, if the law of the participating Member State in which the spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for agreements of that type, those requirements shall apply.

3.
     
  If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States lay down different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.

3.

If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States lay down different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.

4.
     
  If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for agreements of that type, those requirements shall apply.

4.

If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for agreements of that type, those requirements shall apply.

Amendment 43

Amendment 43

Proposal for a regulation

Proposal for a regulation

Article 4 a (new)

Article 4 a (new)

Article 4a

Article 4a

Conversion of legal separation into divorce

Conversion of legal separation into divorce

1.
     
  Where a legal separation is converted into a divorce, the law applicable to the divorce shall be the law applied to the legal separation, unless the parties have agreed otherwise in accordance with Article 3.

1.

Where a legal separation is converted into a divorce, the law applicable to the divorce shall be the law applied to the legal separation, unless the parties have agreed otherwise in accordance with Article 3.

2.
     
  However, if the law applied to the legal separation does not provide for the conversion of legal separation into divorce, Article 4 shall apply, unless the parties have agreed otherwise in accordance with Article 3.

2.

However, if the law applied to the legal separation does not provide for the conversion of legal separation into divorce, Article 4 shall apply, unless the parties have agreed otherwise in accordance with Article 3.

Amendment 45

Amendment 45

Proposal for a regulation

Proposal for a regulation

Article 7 a (new)

Article 7 a (new)

Article 7a

Article 7a

Differences in national law

Differences in national law

Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce, or does not deem the marriage in question valid for the purposes of divorce proceedings, to pronounce a decree of divorce by virtue of the application of this Regulation.

Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce, or does not deem the marriage in question valid for the purposes of divorce proceedings, to pronounce a decree of divorce by virtue of the application of this Regulation.

Amendment 46

Amendment 46

Proposal for a regulation

Proposal for a regulation

Article 8

Article 8

States with
  more than one legal system

States with

more than one legal system

States with
  two or more legal systems – territorial

States with

two or more legal systems – territorial

1.   Where a State comprises several territorial units each of which has its own rules of law in respect of divorce and legal separation, each territorial unit shall be considered a State for the purpose of determining the law applicable under this Regulation.

1.   Where a State comprises several territorial units each of which has its own rules of law in respect of divorce and legal separation, each territorial unit shall be considered a State for the purpose of determining the law applicable under this Regulation.

1a.
     
  In relation to such a State:

1a.

In relation to such a State:

| (a) | any reference to habitual residence in that State shall be construed as a reference to habitual residence in a territorial unit of that State, |
| --- | --- |

(a)

(a)

any reference to habitual residence in that State shall be construed as a reference to habitual residence in a territorial unit of that State,

any reference to habitual residence in that State shall be construed as a reference to habitual residence in a territorial unit of that State,

| (b) | any reference to nationality shall be construed as a reference to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the spouses or, in the absence of such a choice, to the territorial unit with which the spouse or spouses has or have the closest connection. |
| --- | --- |

(b)

(b)

any reference to nationality shall be construed as a reference to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the spouses or, in the absence of such a choice, to the territorial unit with which the spouse or spouses has or have the closest connection.

any reference to nationality shall be construed as a reference to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the spouses or, in the absence of such a choice, to the territorial unit with which the spouse or spouses has or have the closest connection.

Amendment 47

Amendment 47

Proposal for a regulation

Proposal for a regulation

Article 8 a (new)

Article 8 a (new)

Article 8a

Article 8a

States with two or more legal systems – inter-personal conflicts

States with two or more legal systems – inter-personal conflicts

In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as a reference to the legal system determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouse or spouses has or have the closest connection applies.

In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as a reference to the legal system determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouse or spouses has or have the closest connection applies.

Amendment 48

Amendment 48

Proposal for a regulation

Proposal for a regulation

Article 8 b (new)

Article 8 b (new)

Article 8b

Article 8b

Non-application of this Regulation to internal conflicts

Non-application of this Regulation to internal conflicts

A participating Member State in which different systems of law or sets of rules apply to matters governed by this Regulation shall not be required to apply this Regulation to conflicts of law arising solely between such different systems of law or sets of rules.

A participating Member State in which different systems of law or sets of rules apply to matters governed by this Regulation shall not be required to apply this Regulation to conflicts of law arising solely between such different systems of law or sets of rules.

Amendment 49

Amendment 49

Proposal for a regulation

Proposal for a regulation

Article 9 – paragraph 1 – point a

Article 9 – paragraph 1 – point a

| (a) | the formal
  rules
  applicable to agreements on the choice of applicable law; and |
| --- | --- |

(a)

the formal
  rules
  applicable to agreements on the choice of applicable law; and

rules

| (a) | the formal
  requirements
  applicable to agreements on the choice of applicable law
  pursuant to Article 3b (2) to (4)
  ; and |
| --- | --- |

(a)

the formal
  requirements
  applicable to agreements on the choice of applicable law
  pursuant to Article 3b (2) to (4)
  ; and

requirements

pursuant to Article 3b (2) to (4)

Amendment 51

Amendment 51

Proposal for a regulation

Proposal for a regulation

Article 10 – paragraph 1 – subparagraph 2

Article 10 – paragraph 1 – subparagraph 2

However, effect shall also be given to an agreement on the choice of the applicable law concluded
  in accordance with the law of a participating Member State
  before the date of application of this Regulation, provided that it
  fulfils the conditions set out in the first paragraph of Article 3(3)
  .

in accordance with the law of a participating Member State

fulfils the conditions set out in the first paragraph of Article 3(3)

However, effect shall also be given to an agreement on the choice of the applicable law concluded before the date of application of this Regulation, provided that it
  complies with Articles 3a and 3b
  .

complies with Articles 3a and 3b

Amendment 52

Amendment 52

Proposal for a regulation

Proposal for a regulation

Article 11 – paragraph 1

Article 11 – paragraph 1

1.   
  Without prejudice to the obligations of the participating Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this
  Regulation shall not affect the application of
  bilateral or multilateral
  conventions to which one or more participating Member States are party at the time
  of adoption of this
  Regulation and which
  relate to the subjects covered by it.

Without prejudice to the obligations of the participating Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this

bilateral or multilateral

of adoption of this

relate to the subjects covered by it

1.   
  This
  Regulation shall not affect the application of
  international
  conventions to which one or more participating Member States are party at the time
  when this
  Regulation
  is adopted or when the decision referred to in Article 1(2) is adopted
  and which
  lay down conflict-of-law rules relating to divorce or separation
  .

This

international

when this

is adopted or when the decision referred to in Article 1(2) is adopted

lay down conflict-of-law rules relating to divorce or separation

Amendment 53

Amendment 53

Proposal for a regulation

Proposal for a regulation

Article 11 – paragraph 2

Article 11 – paragraph 2

2.   
  Notwithstanding paragraph 1
  , this Regulation shall
  take precedence
  as between participating Member States over conventions
  which relate to subjects
  governed by this Regulation
  and to which the participating Member States are party
  .

Notwithstanding paragraph 1

take precedence

which relate to subjects

and to which the participating Member States are party

2.   
  However
  , this Regulation shall, as between participating Member States
  , take precedence
  over conventions
  concluded exclusively between two or more of them in so far as such conventions concern matters
  governed by this Regulation.

However

, take precedence

concluded exclusively between two or more of them in so far as such conventions concern matters

Amendment 54

Amendment 54

Proposal for a regulation

Proposal for a regulation

Article 12 – paragraph 1

Article 12 – paragraph 1

By
  [
  five years after the entry into force of this Regulation
  ]
  at the latest, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by
  proposed amendments
  .

[

]

proposed amendments

1.
     By five years after the entry into force of this Regulation at the latest,
  and every five years thereafter,
  the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by
  proposals to adapt this Regulation
  .

1.

and every five years thereafter,

proposals to adapt this Regulation

Amendment 55

Amendment 55

Proposal for a regulation

Proposal for a regulation

Article 12 – paragraph 1 a (new)

Article 12 – paragraph 1 a (new)

1a.
     
  To that end, the participating Member States shall communicate to the Commission relevant information on the application of this Regulation by their courts.

1a.

To that end, the participating Member States shall communicate to the Commission relevant information on the application of this Regulation by their courts

Amendment 56

Amendment 56

Proposal for a regulation

Proposal for a regulation

Article 13 – paragraph 2 a (new)

Article 13 – paragraph 2 a (new)

For those Member States participating pursuant to a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned.

For those Member States participating pursuant to a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned.

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(1)  Texts adopted, P7_TA(2010)0216.

1

(2)  OJ L 189, 22.7.2010, p. 12.

2

(3)  OJ L
  [...], [...],
  p.
  [...]
  .

3

[...], [...],

[...]

(4)  OJ L
  189, 22.7.2010
  , p.
  12

  .

4

189, 22.7.2010

12

(5)  OJ L 174, 27.6.2001, p. 25.

5

(6)  

  OJ L 168, 30.6.2009, p. 35.

6

OJ L 168, 30.6.2009, p. 35.

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