EN Official Journal of the European Union C 376/87

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes’

COM(2011) 126 final — 2011/0059 (CNS)

and the ‘Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships’

COM(2011) 127 final — 2011/0060 (CNS)

2011/C 376/16

Rapporteur: Mr PEZZINI

On 26 April 2011 the Council decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the

Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes COM(2011) 126 final - 2011/0059 (CNS) and the

Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships COM(2011) 127 final – 2011/0060 (CNS).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 31 August 2011.

At its 474th plenary session, held on 21 and 22 September 2011 (meeting of 21 September 2011), the European Economic and Social Committee adopted the following opinion by 156 votes to 3 with 6 abstentions.

1. Conclusions and recommendations

1.1 The EESC shares the Commission's view that legal uncertainty and discrimination regarding the property rights of international couples must be eliminated. It also considers it appropriate to adopt a legislative package made up of two separate regulations for the property regimes of married and registered couples.

1.2 The EESC believes that any legislation in this area must be founded on legal certainty, predictability, easy and ready access to the courts, fair solutions, affordable costs and short timeframes, allowing exceptions only for reasons of public policy.

1.3 The EESC considers it vital for any proposed legislation to set out clear and transparent safeguards not only for rights concerning the property regimes of married and registered couples but also for the interests and rights of third parties. In this context, the applicable law and jurisdiction should be decided at the time when the union is contracted.

1.4 The EESC thinks that this could be an area in which it might be possible to adopt an optional European alternative, i.e. the so-called ‘28th regime’, which would provide the same safeguards for international couples with regard to property regimes and property consequences.

1.4.1 This would also make it easier to use arbitration, by validating out-of-court settlements.

1.5 The EESC stresses the importance of ensuring the immediate enforceability of decisions, without triggering further procedures, even simplified procedures, in order to cut costs and delays for citizens and reduce red tape for judicial systems.

1.6 The EESC recommends introducing an information and training system for the relevant court officials, legal practitioners and the public by setting up an interactive portal in all official EU languages and a system for sharing professional expertise and practices.

1.7 The EESC calls for a European network of free national technical legal assistance points to be set up under the authority of the Agency for Fundamental Rights to ensure that all couples can make informed use of their rights.

1.8 The EESC stresses the importance of bringing the various proceedings relating to succession, divorce, legal separation and liquidation of the matrimonial property regime before the same court.

1.9 Finally, the EESC strongly recommends ensuring total consistency between legislation already in force and legislation currently being amended or prepared, in order to ensure a homogeneous, simplified framework for property regimes, which all EU citizens can access.

2. The current legal framework

2.1 The Committee believes that it is vitally important for citizens to be able to move freely between Member States so that they can live, found families and acquire property within the EU without hindrance or uncertainty.

2.2 The treaties and the Charter of Fundamental Rights of the European Union recognise the right to freedom of movement and residence, to access justice and respect for fundamental rights, namely the right to property, equality before the law, the principle of non-discrimination, the right to private and family life, the right to marry and to found a family, in accordance with national laws, and the right to a fair trial.

2.3 The increased mobility of citizens within the EU has resulted in more ‘international’ marriages and partnerships between nationals of different Member States or living in a Member State of which they are not nationals.

2.4 The EESC recognises the importance of being able to exercise these rights fully within an area without internal borders, in the case of married or registered couples made up of nationals of different Member States, who may also live in a Member State of which they are not nationals. This situation may often result in the ownership of movable and/or immovable property in more than one EU country.

2.5 At present, there are about 16 million international couples in Europe. In 2007, 13 % (310 000) of the 2.4 million new marriages had an international dimension to them. Similarly, 41 000 of 211 000 registered partnerships in the EU concerned international couples.

2.6 Same-sex marriages are admitted in five countries (the Netherlands since 2001, Belgium since 2003, Spain since 2005, Sweden since 2009 and Portugal since 2010), while ‘registered partnership’ is a more recent legal institution recognised in 14 Member States (1). All 14 countries admit same-sex registered partnerships but only Belgium, France, Luxembourg and the Netherlands admit both same-sex and opposite-sex registered partnerships.

2.7 When consulted by the Commission in 2006 on the Green Paper on the rules on the conflict of laws in matters concerning matrimonial property regimes, the EESC broadly supported (2) the amendments to Regulation (EC) No 2201/2003, which extended jurisdiction and the rules concerning applicable law in matrimonial matters, and suggested that the amendments should supplement, on these points, a regulation on the recognition of legal decisions on matrimonial matters and the custody of children. The EESC had already issued a very detailed opinion on jurisdiction in matrimonial matters, to which it refers the reader (3), when the Green Paper on Divorce was published.

2.8 The Committee also wondered whether it was advisable to deal separately with the issue of distribution of jointly-held assets (buildings, furniture and other property rights), by widening the scope rationae personae of this distribution to unmarried couples (which could also have children in common).

2.9 It might have been more logical to deal, on the one hand, with all the consequences of the dissolution of a marriage and, on the other hand, with all the consequences of the separation of an unmarried couple living under a registered partnership arrangement in a single regulatory framework.

2.10 That would doubtless have improved clarity and understanding of applicable law and facilitated the recognition of legal decisions which often regulate all the conditions and consequences of a divorce in a single, final judgment.

2.11 In view of the distinctive characteristics of marriages, registered partnerships, and the different legal consequences which these two types of union might have, the EESC agrees that there is a need for two separate legal instruments, i.e. one on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, and another on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships.

2.12 The EESC thinks that there may be a case for adopting an optional European alternative (the ‘28th regime’) (4), in the form of an integrated, standard instrument which married or registered couples could, entirely without discrimination, freely opt for if they wished. The agreement between France and Germany to set up a joint matrimonial property regime could offer some guidance in this respect (5).

2.12.1 The property aspects of marriages and registered partnerships are often settled on a ‘non-contentious basis’. In such cases, the EESC believes that the 28th regime should include clauses recognising the validity of arbitrated out-of-court settlements (6), with significant advantages for EU citizens.

2.13 The EESC believes that both instruments should ensure:

— the predictability and legal certainty of applicable law through clear and uniform rules;

— consistency in judicial cooperation in civil matters, especially family law;

— the automatic recognition of decisions and enforcement through a simplified uniform procedure, ensuring the circulation of judgments without exequatur in relation to the recognition and enforcement of decisions;

— the harmonisation of rules on jurisdiction and applicable law through a single judicial authority for all aspects of a couple's situation, and a requirement for couples to make a choice;

— definition of a consistent, structured and readily accessible legal framework unifying and harmonising the terminology used for all themes and concepts and the requirements regarding similar rules for all topics (e.g. lis pendens [parallel proceedings], jurisdiction clause, etc.).

3. The Commission proposals

3.1 In its EU Citizenship Report 2010 - Dismantling the obstacles to EU citizens' rights (7), the Commission identified uncertainty surrounding the property rights of international couples as one of the main obstacles faced by EU citizens in their daily lives when they tried to exercise their rights.

3.2 The Commission's proposals are based on Article 81(3) of the Treaty on the Functioning of the European Union.

3.3 The Commission has presented two initiatives to the Council regarding applicable law in relation to the property rights of international couples. The first concerns jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and the second covers the same issues in relation to the property consequences of registered partnerships.

3.4 The Commission's proposals seek to bridge the differences between the various legal systems in the EU and make life easier for international couples without harmonising or changing Member States' substantive law on matrimonial matters or registered partnerships. They aim to:

— enable married international couples to choose the law to be applied to their joint property following the death of one of the spouses, or a divorce;

— increase legal certainty for registered partnerships with an international dimension by applying – as a general rule - the law of the State of registration to the property of registered couples;

— increase legal certainty for international couples (whether married or registered) by establishing a set of consistent rules to decide legal jurisdiction and applicable law on the basis of objective criteria listed in order of precedence;

— improve predictability for international couples by simplifying procedures for the recognition of decisions and instruments throughout the EU by enabling citizens to have various procedures handled by the same court.

3.5 The Commission also proposes that the website of the European Judicial Network in civil and commercial matters should include a page on existing registers concerning matrimonial property regimes and national rules.

3.6 The proposals have to be unanimously approved by the EU Council of Ministers after consulting the European Parliament.

4. General comments

4.1 The EESC believes that the law applicable to married couples should be determined when the marriage is contracted in order to avoid a choice of law that has no legal connection with the marriage. Where existing marriages are concerned, in the absence of a choice, a list of objective criteria could be drawn up to determine applicable law, in accordance with the system adopted in the recent Rome III Regulation (8).

4.1.1 The EESC believes that the introduction of rules giving married couples a limited choice of applicable law would increase legal certainty while giving the interested parties some latitude in the choice of law applied to their property and, at the same time, protecting the interests of third parties.

4.1.2 In the case of registered partnerships, the applicable law is the law of the State of registration.

4.1.3 The EESC emphasises the need for a clear and appropriate system of information on the choice of law mentioned in Council Regulation No 1259/2010 and the proposal set out in COM(2011) 126 final, in order to enable couples to get a good understanding of divorce laws and of the rules governing property relationships.

4.1.4 The EESC considers legal certainty to be a priority. It therefore raises concerns as to whether it will in fact be possible to respect a couple's choice of law to be applied to their property if they choose the law of a country other than the one where their property is actually situated.

4.1.4.1 The EESC believes that in order to ensure both legal certainty and the couple's right to safeguard the value of their personal and real property, it would be advisable to have a fair valuation of the property when the marriage is contracted and at the time of the separation or divorce.

4.1.4.2 The EESC calls for all acts referring to matrimonial property to specify the regime that applies to the couple. This is particularly important if there are stocks and shares, life insurance polices, pension funds or similar assets.

4.1.5 The EESC wonders what the repercussions might be for third parties when the choice of law applicable to property regimes does not correspond to the actual location of the property, which could also be outside the EU.

4.2 The EESC considers it important to eliminate problems associated with the recognition of decisions and instruments by making progress on cutting the cost and time it takes for decisions to be recognised and preventing the possibility of applications to courts in different Member States.

4.3 The rules on jurisdiction with regard to the liquidation of property regimes would extend the jurisdiction of the court dealing with a divorce or succession to matters also relating to the liquidation of the property regime. This would offer people greater legal certainty, as the jurisdiction handling the divorce or succession would also deal with the liquidation of the property regime.

4.3.1 The EESC is concerned about the time it will take the Member States to adapt their domestic law, and the date that the regulations on property regimes enter into force.

4.4 The EESC considers it essential to guarantee the free movement of decisions and instruments through their automatic recognition throughout the EU and their enforcement through simplified uniform procedures, ensuring the consistency required in judicial cooperation in civil matters.

4.5 The EESC believes that the overarching objective should be to establish a consistent, structured and readily accessible legal framework. It considers that in order to achieve this, it is necessary to harmonise the terminology used for all themes and concepts and the requirements regarding similar rules for all topics (e.g. lis pendens [parallel proceedings], jurisdiction clause, habitual residence etc.).

4.6 The EESC also considers it important to allow the recognition, enforcement and circulation of decisions without exequatur in the internal market, in accordance with the proposed amendments (9) to the rules on civil and commercial matters set out in Council Regulation (EC) No 44/2001, allowing exceptions only for reasons of public policy and compliance with the Charter of Fundamental Rights.

4.7 The EESC agrees that the various proceedings, i.e. divorce proceedings, legal separation and the liquidation of a couple's property regime, should be handled by the same court. The courts with jurisdiction are the same as the ones identified in the ‘Brussels IIa Regulation’.

4.7.1 The EESC stresses the importance of preventing parallel proceedings and the application of different substantive laws to the property of married or registered couples.

4.8 The EESC also stresses the importance of EU action to provide training for the courts with jurisdiction and legal practitioners who will have to apply the new regulatory framework for the property regimes of married and registered couples.

4.9 Married couples and registered partners must be given appropriate information on the consequences of their choice of law for their property in cases when it is transferred, especially if the law chosen is different from the law of the country where the property is located.

4.10 The Justice and Home Affairs Council meeting of 24 and 25 February 2011 recognised in its conclusions ‘that respect for fundamental rights should also be taken into account when drafting legal acts which are not subject to a legislative procedure’ (10). The EESC believes that the Agency for Fundamental Rights could and should play an active part in providing technical legal assistance to guarantee couples the full exercise of their rights.

5. Specific comments

5.1 Proposed rules on matrimonial property regimes

5.1.1 The EESC agrees that the notion of matrimonial property regime should embrace considerations of both the spouses' daily management of their property and the liquidation of the property regime and should not affect the nature of rights in rem relating to property, the classification of property and of rights, nor the determination of the prerogatives of the holders of such rights, allowing exceptions only for reasons of public policy as set out in the legislation of Member States.

5.1.2 The EESC is concerned about the need to ensure consistency with respect to jurisdiction between the applicable rules under Council Regulation (EU) 1259/2010 (divorce and legal separation) and Council Regulation (EC) 2201/2003 (matrimonial matters) and the rules set out in the proposal for a regulation on matrimonial property regimes (see Chapter II, Articles 4 and 5 and Chapter III, Articles 15-18).

5.1.2.1 The EESC believes that a difference in rules in various cases - left entirely to the discretion of the parties - could result in undue complexities and lead to conflicts of jurisdiction and their consequences, with significant increases in costs and delays. The EESC thinks that jurisdiction should be decided when the marriage is contracted.

5.1.3 The principle of mutual recognition with respect to the free movement of decisions, authentic instruments and court transcriptions concerning matrimonial property regimes should exclude the possibility of further proceedings, such as those proposed. Exequatur proceedings of any type (see the Brussels I and Brussels II regulations) would increase costs and time-frames.

5.1.4 The EESC believes that Article 4 of both regulations should exclude the possibility of requiring the parties' agreement in order to be able to extend the jurisdiction of the court handling the dissolution or annulment to the property consequences of these proceedings.

5.2 Proposed rules for the property regimes of registered partners

5.2.1 The EESC believes that it is vital to bear in mind the features that distinguish registered partnerships in order to determine the legal consequences for registered partners with specific regard to the property aspects for the partners and vis-à-vis third parties.

5.2.2 The EESC is concerned that the provisions set out in Chapter III of the regulation proposed in COM(2011) 127 final (registered partnerships) may be incompatible with the laws of the country where the property is actually situated.

5.2.3 Given the differences between systems within the countries that admit registered partnerships, with a view to enhancing the guarantees of the rights of people in registered partnerships and those for third parties, it would be appropriate to harmonise information systems, publicity procedures and the enforceability of rights relating to property owned by such couples, especially if it is located in countries that do not recognise this form of partnership.

5.3 Access to information on property regimes in Member States

5.3.1 The EESC emphasises the importance of ensuring adequate access to information, primarily for married and registered couples but also for courts with jurisdiction and legal practitioners, by providing practical guides in the EU languages and developing a website in all official EU languages.

5.3.2 The EESC considers it absolutely essential to develop a training programme for court officials and practitioners and users of the law, alongside experience-sharing initiatives to widen professional expertise and familiarity with the relevant national legal systems.

5.3.3 The EESC calls for the establishment of a European network of national technical legal assistance points, under the authority of the Agency for Fundamental Rights, in order to ensure that married and registered couples do not need to pay in order to be able to make informed use of their rights.

Brussels, 21 September 2011. The President of the European Economic and Social Committee Staffan NILSSON

(1) Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Luxembourg, the Netherlands, Slovenia, Sweden and the United Kingdom.

(2) OJ C 325, 30.12.2006, p. 71.

(3) OJ C 24, 31.1.2006, p. 20.

(4) OJ C 21, 21.2.2011, p. 26

(5) See: http://www.gouvernement.fr/gouvernement/conseil-des-ministres du 23 mars 2011(French cabinet meeting of 23 March 2011)

(6) Proposal from the Italian ministry of justice, as well as the European Court of Justice in the West Tankers judgment, Case C-185/07, point 26, on the validity of the arbitration clause

(7) Adopted on 27 October 2010.

(8) See Council Regulation (EU) No 1259/2010 of 20 December 2010, OJ L 343/10, 29.12.2010.

(9) See COM(2010) 748 final

(10) http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/119464.pdf See Council conclusions on the role of the Council of the European Union in ensuring the effective implementation of the Charter of Fundamental Rights of the European Union, 24 and 25 February 2011