EN    EN EN 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 16.3.2011 
SEC(2011) 328 final 
  
COMMISSION STAFF WORKING DOCUMENT 
SUMMARY OF THE IMPACT ASSESSMENT  
 
 
Accompanying document to the 
  
COMMUNICATION FROM THE CO MMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMI TTEE OF THE REGIONS 
 
Bringing legal clarity to property rights for international couples 
  
Proposal for a  
 
COUNCIL REGULATION 
 
on jurisdiction, applicable law and the recognition and enforcement of decisions in 
matters of matrimonial property regimes   
 
and the  
  
Proposal for a  
 
COUNCIL REGULATION  
 
on jurisdiction, applicable law and th e recognition and enforcement of decisions 
regarding the property consequences of registered partnerships 
  
{COM(2011) 125 final} 
{COM(2011) 126 final} {COM(2011) 127 final} 
{SEC(2011) 327 final}  
EN 2   EN 1. PROCEDURAL ISSUES AND THE CONSULTATION OF INTERESTED PARTIES  
Preparing the future EU initiatives in the fi eld of property of couples lies within the 
framework of the 2000 Programme of Mutual  Recognition of decisions in civil and 
commercial matters. 
In 2003 the Commission commissioned a study on matrimonial property regimes and the 
property of unmarried couples in private international law and internal law, which highlighted 
the existence of problems. In 2006 the Commissi on adopted a Green Paper on conflict of laws 
in matters concerning ma trimonial property regimes1, including the question of jurisdiction 
and mutual recognition.  
The Commission set up an expert group to assist it in its work on future  legislative proposals, 
composed of experts acting independently of the Member States (hereafter "MS"). A public 
hearing was organised on 28 September 2009: 99 participants, from the MS, the expert group 
as well as academics, lawyers, notaries and me mber of civil society attended to discuss the 
usefulness of a European instrument on matr imonial and patrimonial property regimes for 
international couples.  
Finally, the Stockholm Programme called for th e principle of mutual recognition to " be 
extended to fields that are not yet covered but  essential to every day life, e.g. matrimonial 
property rights and the property conseque nces of the separation of couples ". 
The present report is based on the findings of an external study commissioned by the 
Commission to assist her in the impact assessment report. 
2. PROBLEM DEFINITION  
More and more citizens in EU move across national borders and this leads to an increased 
number of international couples or couples wi th an international di mension: spouses of 
different nationalities, couples living in a MS of which they are not nationals, owning assets 
in different MS and sometimes they divorce or die in a country other than the one of their 
origin. The problem is that it is very di fficult for people to know which courts have 
jurisdiction, and which laws are applicable, to their personal situation and the situation of 
their property. As a result, they face unintende d, and disadvantageous, consequences not only 
in the daily management of their assets, but also when the couple separates, or when a 
member of the couple dies. 
Although EU rules exist on jurisdiction and appli cable law in civil and commercial law, and 
in some areas of family law, no such laws currently exist for matrimonial property regimes, nor for property rights of un married couples. The subject is therefore governed by national 
law and international agreements between MS.  
The causes of current problems for couples in regi stered partnerships are basically the same as 
for married couples. However, there are some  important additional challenges because the 
concept of registered partnerships in itself ex ists only in 14 MS, not all MS have substantive 
laws on this matter, and even fewer have adopted  jurisdiction rules and c onflict of law rules.  
                                                
 
1 COM(2006)400 final  
EN 3   EN The proposals cover respectively the married c ouples and the register ed partnerships, "de 
facto" unions are not covered. 
Size of the problem 
In 2007 there were 2 400 000 new marriages in  the EU of which approximately 300 000 
(13%) were international and there were 1 047 427 divorces, of which 13% also had an 
international element. Moreover, in the same year approx. 2.4 million marriages were 
dissolved through death, of whic h approximately 390 000 were esti mated to be international. 
All in all, in 2007 more than 430 000 internat ional couples split through divorce or death, and 
in all these cases matrimonial property had to be divided up.  
In 2007 there were approximately 211 000 register ed partnerships in the EU, of which over 
41 000 had an ‘international dimens ion’ with regard to  their property (total  of international 
registered partnerships, regist ered partnerships living abroad  or having property abroad). 
3. OBJECTIVES  
The overall objective of the Proposal s is to contribute to the cr eation of a genuine European 
area of civil justice in the field of propert y regimes for married couples and registered 
partnerships and provide common rules setting out which courts  have jurisdiction, and which 
law should be applied, to prope rty rights of couples with an international dimension. 
EN 4   EN The general and specific objectives are summarised in the following table: 
General objective Specific objectives 
1. To prevent parallel proceedings a nd of the application of different 
substantive laws to the property of  a married or unmarried couple. 
2. To ensure spouses and partners ar e able to choose, as far as is 
appropriate, the rules and legal provisi ons applicable to their situation. 
3. To facilitate the recognition and enfo rcement of decisions relating to 
international property regimes of  married and unmarried couples. 
4. To make it possible for a couple to bring all legal matters relating to 
their case (as a result of separati on or death which brings about the 
liquidation of the matrimonial re gime) before the same court. 
5. To ensure that spouses and partners  know, where they have not chosen 
an applicable law, which law will be applicable in the event of 
liquidation of the property regime. 
6. To ensure compatibility with other proposed EU rules (e.g. in relation 
to successions and wills and, for married couples, applicable law in 
divorce proceedings) To remove the remaining restrictions on citizens exercising their rights in 
the European judicial area through 
the extension of mutual recognition to 
matrimonial property rights and the 
property consequences of the 
separation of couples. 
7. To increase access to informati on on matrimonial and patrimonial 
property regimes 
4. POLICY OPTIONS  
4.1. Description of the policy options 
The following policy options have been identified: 
Policy Option 1: Status quo -  no new EU action-. 
Policy Option 2: Provision of targeted info rmation to raise citizens’ awareness that  patrimonial property regimes may not be 
the same in other MS –information to be distributed to couples that are about  to get married or to register a partnership (e.g. 
leaflet with some generic information )-. 
Policy Option 3: Harmonisation of jurisdic tion rules and introduction of rules on automatic recognition and enforcement of 
judgments –EU legislative action in term of Regulation(s) establis hing harmonised jurisdiction ru les (jurisdiction would be 
determined on the basis of connecting factors), and rules on automatic recognition and enfor cement of judgments and other 
decisions-. 
Policy Option 4: Harmonisation of conflict of law rules  – EU legislative action would provide rules to determine which law is 
applicable; a choice of law would be permitted; if no choice of law was made, common connecting factors would determine 
which law apply -. 
Policy Option 5: Uniform optional European proforma for marriage contracts - a standard marriage contract, common to EU 
MS, could be concluded by EU citizens. Some parts of these contracts would need to be adapted to the specifics of the 
national situation -. 
Policy Option 6: Harmonisation of conflic t of law rules and jurisdiction rules,  and introduction of rules on automatic 
recognition and enfor cement of judgments - this option would combine policy options 3 and 4.  
Policy Option 7: Provision of information for third parties on the existence of property regimes of married couples and 
registered partnerships  – different possibilities have been identified to addr ess problems of identifying property relationships 
of married couples or couples in  registered partnerships abroad -.  
4.2. Comparison of the options 
Policy Option 1 : Status quo . This option would not meet the objectives because MS are 
unlikely to streamline their national rules. If they may make changes to their national legal 
EN 5   EN systems on their own initiatives, variations between those system s are likely to remain. On the 
contrary, the existing pr oblems may likely become aggravated in regards with the increasing 
mobility of citizens. Fundamental rights : without being a violation of  the right to property as 
such, the complexity of the legal framework c ould have an impact on th e actual enjoyment of 
property. Social effects : The problems experienced by the weaker party in the couple during 
separation proceedings are also likely to remain. Financial costs : no. Economic effects : with 
increasing numbers of international complicat ed cases, time delays and costs, including 
reduction of the value of assets wi ll become worse than at present. 
Policy Option 2: Targeted provision of information to raise citizens’ awareness that the 
property regime may not be the same in othe r Member States and that they can register 
their regime. This option would contribute to prevent in a very limited exte nt the occurrence 
of parallel proceedings and the applic ation of different substantive laws. Fundamental 
rights:  positive impact on the actual enjoyment of property. Social effects:  minor 
improvements compared to the present situation. Financial costs:  costs to produce the 
information leaflets estimated at approximately 2 million euro per year. Economic effects:  
savings would be low. 
Policy option 3: Harmonisation of jurisdic tion rules and introduction of rules on 
automatic recognition and enforcement of judgments, decisions and deeds.  This option 
would have a limited positive impact, by avoiding parallel court proceedings, and by facilitating the recognition of decisions. Howeve r, the lack of certainty on the question to 
determine which law is applicable would remain. Fundamental rights:  positive impact on 
the actual enjoyment of property. Social impacts:  costs could be saved by preventing parallel 
proceedings, and by facilitating recogn ition and enforcement of decisions. Financial costs:  
low (for the introduction of new jurisdiction rules). Economic impacts: cost savings for MS 
would be low. 
Policy option 4: Harmonisation of conflict of law rules. This option would provide some 
advantages compared to the cu rrent situation. E.g., if  several jurisdictions could still handle 
the same case, they should apply the same substantive law on property regimes (because they would apply the same conflict of law rules) . Besides, by introducing harmonised rules on a 
limited choice of law for the couples, this would increase certainty as to what law would be 
applied. Fundamental rights: positive impact on the actual enjoyment of property. Social 
effects:  costs reductions in terms of  reduced legal fees. The curre nt situation would be also 
improved by eliminating the reason for rush to  court and by avoiding legal professionals 
having to look into other countries’ conflict of  law rules to know which law is applicable. 
Financial costs:  very low for administration. Economic effects:  costs savings would be low. 
Policy Option 5: Uniform optional Euro pean proforma for a marriage contract. This 
option (developed only for married couples) would ensure that where couples have drawn up 
a marriage contract, this contra ct (and consequently the rules chosen by spouses) would be 
recognised throughout the EU. Furthermore, c ouples could choose the law to facilitate 
proceedings linked with divorce or successions. Social impacts:  increasing of legal certainty. 
Financial costs:  costs for administrative work to pr oduce the necessary legislation at EU 
level. Training of legal professionals in the MS also would be required. Economic effects:  it 
would lead to some limited cost savings. Neverthele ss, a vast majority of experts consider that 
such a proposal is immature, becau se of big differences that stil l exists between legislation of 
MS. 
EN 6   EN Policy Option 6:  Harmonisation of conflict of law rules and jurisdiction rules, and 
introduction of rules on automatic reco gnition and enforcement of judgments. 
Harmonised conflict of law rules would ensure that the same law is applied throughout the 
EU to the same case (it would prevent the forum shopping and en sure choice of applicable 
rules). Besides, harmonised conflict of jurisd iction rules would greatly reduce the possibility 
of parallel proceedings, and rules on recognitio n and enforcement would facilitate the easy 
circulation of decisions and acts.  Social impacts : reduction of costs for citizen (i.e. reduced 
legal fees, in particular when a choice of law is made). Financial  costs : costs for 
administrative work to produce the necessary le gislation at EU level. Training of legal 
professionals in the MS also would be required. Economic effects : costs saving would be the 
most important by comparison with others policy options. 
For the Policy Option 7, "Provision of inform ation on property regimes of married 
couples and registered partnerships", several sub-options have been envisaged. : 
– Creation of a webpage on ex isting registers of property regimes and national rules, 
– Creation of a database/knowledge  management system on exis ting registers of property 
regimes and national rules, 
– Commission Recommendation on th e establishment of interconn ected national registers of 
property regimes and the organisa tion of information campaigns, 
– Compulsory establishment of interconnected  national registers of property regimes.  
All these sub-options tend to increase access to information on property regimes. On the basis 
of the assessments made in terms of the ach ievement of objectives, and cost estimations 
made, the preferred option on information on pr operty regimes is the creation of a webpage 
on existing registers of matrimonial property regimes and national ru les. Although some of 
the other policy options ach ieve the objectives to a slightly higher extent, the predictable costs 
for those outweigh the limited additional benefits. 
4.3. The preferred option 
This option would involve EU level action in the form of: 
– the adoption of a package of two Regulations , one dealing with married couples, the other 
with couples in registered partnerships, on the harmonisation of conflict of law rules and 
jurisdiction rules and the introduction of rules on automatic recognition and the enforcement of judgments, other acts; and, 
– the creation of a webpage  on existing registers of matr imonial property regimes and 
national rules. 
4.4. The potential scale and nature of impacts of the preferred option 
This option would address the spec ific objectives iden tified above better that any other of the 
options. 
The harmonised jurisdiction rules (including a lis pendens  provision in combination with rules 
on recognition and enforcement of judgments and acts) would lead to ve ry few possibilities 
for parallel proceedings. Moreover, the harmon ised conflict of law rules would help in 
EN 7   EN preventing the occurrence of forum shopping. It also  ensures that the same law is applied to 
the same case in EU MS. The introduction of rules on a limited choice of law for the spouses 
would increase legal certainty and it would also  give them a limited freedom to determine the 
applicable to their assets, while it would guarant ee the protections of third parties' interests. 
Problems in relation to recogniti on of judgments, decisions and deeds are likely to be almost 
completely eliminated. This includes important  progress in terms of cost saving, delay for 
recognition of decisions, and by avoiding to go to courts in different MS. 
Rules on jurisdiction with regard to the liqui dation of property regimes would extend the 
jurisdiction of the court dealing with a divorce or with a successi on to matters also relating to 
the liquidation of the property re gime. This would give greater legal certainty to citizens as 
the jurisdiction handling the divorce  or succession would also d eal with the liquidation of the 
property regime.  
Problems concerning couples who have not made  a choice of law would also be addressed 
through a system based on a hierarchy of connec ting factors that woul d be applicable to 
property regimes and would be common to all MS. Furthermore,  the principle of immutability 
and a unitary system would ensure that the law applicable to the matrimonial property regime 
does not change when the couple move to another MS and apply to all assets. 
Moreover, an increased access to information on property regimes in other MS would be 
provided through the creation of a webpage. It would provide contact details on existing 
registers and would also facilitate access to in formation concerning national legislation on 
property regimes. Overall the preferred option w ould increase the likelihood that the rights of 
each spouse or partner, private and public credit ors etc. would be respected in an efficient 
way. The option would also lead to an increased likelihood that the initial choices of the spouses would not be affected by any decision to move to, or acquire property, in another 
country. 
4.5. The costs of the preferred option 
At EU level this preferred policy option would lead to the costs for administrative work to 
produce the necessary legislation. At national level  costs would occur while establishing the 
necessary additional nati onal rules (e.g. regarding the jurisd iction of applicable law rules), 
also in training of legal profe ssionals (e.g. lawyers, judges, not aries, solicitors) and judicial 
cooperation. Both – EU and the MS – would have additional co sts for information campaigns 
to present the new legislation.  
Overall the preferred policy option could lead to cost reductions of up to an estimated 
maximum third of the costs currently pertaining due to the problems addressed, i.e. approx 0.4 
billion euro (costs  can be evaluated to 1.1 billion euro  each year). Thes e cost reductions 
would be particularly significant for internati onal marriages and registered partnerships, and 
more specifically regarding issues related to problems occurring at the moment of separation 
or death. 
The implications of simplifying the law (and redu cing legal costs) would be a reduction in the 
fees for legal professionals. However, this woul d be offset by potential increases in work to 
assist those drawing up marriage c ontracts, or partnership contra cts, and in improvements in 
the quality of work due to re ductions in legal uncertainty. 
EN 8   EN The preferred option would be tax neutral, in so far as the pa ckage of two Regulations would 
not result in any changes to the MS' national legislation on taxation. 
4.6. EU added value 
The main problems are conflict between nationa l rules on applicable law, jurisdiction, and 
problems of recognition and enforcement of d ecisions and acts between MS. As this is a 
cross-border problem, it can only be solved at a European level. If MS make changes to their 
national legal systems on their own initiative, it is unlikely that these will harmonise the 
country's rules with those of other EU MS. EU le vel action is necessary in view of the nature 
and scale of the problem, and w ould produce clear benefits compar ed to action at the level of 
MS. Existing EU legislation on jurisdiction an d recognition of judgments  in other fields has 
proved to be effective and useful for citizens. 
The preferred option will bring cl ear benefits to EU citizens who are part of an "international" 
couple, by setting out clear rules on how their property should be dealt with upon separation 
or death. The problems addressed by the preferre d policy option are in pa rt a consequence of 
the internal market and free movement of people.  If the current problem s are not solved, trust 
in the EU internal market and the EU area of freedom, security and justice without internal 
borders may be damaged. Indeed, the liquidati on of property regimes with international 
elements is both more costly and time-consum ing for citizens than th e liquidation of purely 
national property regimes. By ensuring more e fficient handling of the liquidation of property 
regimes with international elements, the prefe rred option would promote trust in the operation 
of the internal market and simplify matters fo r citizens. The proposals would contribute to 
reaching the objective of the EU to make th e lives of EU citizens easier, without any 
discrimination between purely na tional couples and couples with  an international dimension. 
Overall the estimated economic be nefits of the preferred opti on are substantial, and should 
contribute to improving the situat ion of these couples significan tly. Only such EU legislative 
initiatives could provid e solutions to couples with cross- border dimensions, and improve the 
situation of European families who take adva ntage of a genuine Eu ropean area without 
internal borders. 
Nevertheless, the initiatives respect the principl e of subsidiarity: as it is outside the EU's 
competence to harmonise the substantive law, th e future instruments wo uld not affect national 
rules of MS, and would not imply harmonisation of substantive laws that apply to property 
rights between spouses and partners.  
5. MONITORING AND EVALUATION  
In order to monitor the effective implementatio n of the Regulations as well as the success of 
the webpage, regular evaluation and reporting by the Commission will take place. The Commission will prepare evaluation reports on  the application of the Regulations. The 
Commission will also monitor the utilisation of th e webpage to see how much it is being used 
by citizens and third parties to find information, and how it c ould be improved. Furthermore, 
the European Judicial Network for civil and co mmercial matters could play an important role 
to strengthen the cooperation between MS when applying the Regulations.