EUROPEAN COMMISSION Brussels, 30.6.2016 SWD(2016) 207 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast) {COM(2016) 411 final}

{SWD(2016) 208 final}



COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast) TABLE OF CONTENTS I. Introduction 1. BACKGROUND 2. THE INTERPLAY WITH OTHER FAMILY LAW INSTRUMENTS 2.1. Parental responsibility matters 2.2. Matrimonial matters 3. LEGAL AND POLITICAL MANDATE 4. REFIT 5. AVAILABLE DATA 6. METHODOLOGY

II. MATRIMONIAL MATTERS 1. PARTY AUTONOMY AND "RUSH TO COURT" IN MATRIMONIAL MATTERS 1.1. Problem definition 1.2. Scale of the problem 1.3. Subsidiarity 1.4. Objectives 1.5. Description of Policy Options 1.6. Analysis of impact of Policy Options 1.6.1.Option 1: Baseline scenario 1.6.2.Option 2: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link 1.6.3.Option 3: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a possibility for the court to transfer jurisdiction to the courts of another Member State 1.6.4.Option 4: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a hierarchy of grounds of jurisdiction 1.7. Comparing the Options and preferred Policy Option 2. THE OPERATION OF THE REGULATION IN THE INTERNATIONAL LEGAL ORDER 2.1. Problem definition 2.2. Scale of the problem 2.3. Subsidiarity 2.4. Objectives 2.5. Description of Policy Options 2.6. Analysis of impact of Policy Options

2.6.1.Option 1: Baseline scenario 2.6.2.Option 2: Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries 2.6.4.Option 4: No harmonisation of residual jurisdiction but deletion of Article 6 which protects a defendant having an EU nationality or domicile from being sued in another Member State under residual jurisdiction rules of national law and introduction of a discretionary lis pendens rule vis-à-vis third countries 2.7 Comparing the Options and preferred Policy Option III. PARENTAL RESPONSIBILITY 3. THE RETURN PROCEDURE IN CASES OF PARENTAL CHILD ABDUCTION 3.1. Problem definition 3.2. Scale of the problem 3.3. Subsidiarity 3.4. Objectives 3.5. Description of Policy Options 3.6. Analysis of impacts of retained Policy Options 3.6.1.Option 1: Baseline scenario 3.6.2.Option 2: Codification of the current interpretation based on available guidelines and the CJEU case law 3.6.3. Option 3: Introduction of measures increasing efficiency and improving the functioning of the "overriding mechanism" 3.6.4.Option 4: Revoking the current system by deleting the overriding mechanism and thereby returning to the 1980 Hague Convention system 3.6.5. Option 5: Revoking the current system of Article 11 by concentrating the jurisdiction for return proceedings in the Member State of origin and enforcing the return order in the Member State of refuge 3.7 Comparing the Options and preferred Policy Option 4. PLACEMENT OF THE CHILD IN ANOTHER MEMBER STATE 4.1. Problem definition and scale of the problem

4.2. Subsidiarity 4.3. Objectives 4.4. Description of Policy Options 4.5. Analysis of impact of Policy Options 4.5.1.Option 1: Baseline scenario 4.5.2.Option 2: Creation of an autonomous consent procedure to be applied to all cross-border placements, flanked by a time limit of eight weeks for the requested Member State to respond to the request 4.5.3.Option 3: Creation of an autonomous consent procedure to be applied to all cross-border placements flanked by a period for the requested Member State to object and harmonised grounds for refusal 4.6. Comparing the Options and preferred Policy Option 5. RECOGNITION AND ENFORCEMENT OF JUDGMENTS 5.1. Problem definition 5.2. Subsidiarity 5.3. Objectives 5.4. Description of Policy Options 5.5. Analysis of impact of Policy Options 5.5.1.Option 1: Baseline scenario 5.5.2.Option 2: Extension of the current system for access judgments (abolition of exequatur plus certificate on enforceability and respect of procedural standards) to all types of judgments on parental responsibility matters 5.5.3.Option 3: Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement 5.5.4.Option 4: Option 3 plus introduction of targeted measures to improve the efficiency of actual enforcement 5.5.5.Option 5: Option 3 plus introduction of a uniform enforcement procedure 5.6. Comparing the Options and preferred Policy Option

6. COOPERATION BETWEEN NATIONAL AUTHORITIES 6.1. Problem definition 6.2. Scale of the problem 6.3. Subsidiarity 6.4. Objectives 6.5. Description of Policy Options 6.6. Analysis of impact of Policy Options 6.6.1. Option 1: Baseline scenario 6.6.2.Option 2: Clarification of the Central Authorities' and other requested authorities’ tasks 6.6.3.Option 3: Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an article on adequate resources 6.7. Comparing the Options and preferred Policy Option IV. CONCLUSION 7. OVERALL EVALUATION OF IMPACT OF PREFERRED POLICY OPTIONS 7.1. Summary of the preferred Policy Options 7.2. The preferred options' effectiveness to achieve the policy objectives 7.3. Compliance costs 7.4. Impact on fundamental rights 8. PROPORTIONALITY OF EU ACTION 9. LEGAL BASIS 10. MONITORING AND EVALUATION

Annex 1 – Procedural information Annex 2 – Evaluation study of the Regulation Annex 3 – Stakeholder consultation Annex 4 – Who is affected by the initiative and how? Annex 5 – Glossary Annex 6 – Choice of court in other EU family law instruments Annex 7 – Number of appeals in return proceedings Annex 8 – Delays in obtaining exequatur in the Member States Annex 9 – Examples of cooperation between the national authorities Annex 10 – Overview of human resources at Central Authorities Annex 11 – Summary of the general, specific and operational objectives Annex 12 – Monitoring and evaluation I. Introduction 1. BACKGROUND Regulation No 1347/2000 laying down rules on jurisdiction, recognition and enforcement of judgments on divorce, separation and marriage annulment as well as judgments on parental responsibility for the children of both spouses was the first Union instrument adopted in the area of judicial cooperation in family law matters. It was replaced by Regulation No 2201/2003 (commonly known as the Brussels IIa Regulation, hereafter "the Regulation"). The Regulation is the cornerstone of Union judicial cooperation in matrimonial matters and matters of parental responsibility. It applies since 1 March 2005 to all Member States except Denmark . Courts in all Member States have to apply it in all proceedings for divorce, separation or marriage annulment and in all proceedings on parental responsibility matters with a cross-border element. The term “international couple” is therefore used in this report to refer to situations where spouses are habitually residing in different Member States, have different nationalities or have the common nationality of one Member State, but are habitually residing in another Member State. It is estimated that, on average, one in twelve couples in Europe is an "international couple". The Regulation establishes uniform jurisdiction rules for divorce, separation and the annulment of marriage as well as for disputes about parental responsibility with an international element. It facilitates the free circulation of judgments, authentic instruments and agreements in the Union by laying down provisions on their recognition and enforcement in other Member States. 2. THE INTERPLAY WITH OTHER FAMILY LAW INSTRUMENTS The assessment of the operation of the Regulation has to be made against the background of other instruments, in particular other EU Regulations in the area of family law and international instruments such as the 1980 and 1996 Hague Conventions.

There are no direct overlaps in terms of scope of the Brussels IIa Regulation and other EU Regulations in the area of family law. However, in the area of parental responsibility, the carefully negotiated interaction between the Regulation and the two Hague Conventions of 1980 and 1996 needs to be preserved while in the area of matrimonial matters, an indirect link with some other EU instruments needs to be taken into account. 2.1. Parental responsibility matters With respect to the parental responsibility matters (custody, access, child protection) the courts of the Member States are bound by the jurisdiction rules of the Regulation. There are no other EU instruments dealing with this aspect. Generally speaking, only one Member State at a time has jurisdiction in order to avoid parallel proceedings and conflicting judgments. The jurisdiction rules are child-centred and based on proximity to the child (habitual residence as the main rule). The aim of the 1980 Hague Convention is to protect the jurisdiction of the State of habitual residence of the child, thereby protecting the child itself. The Contracting States to the 1980 Convention, including all Member States, have agreed that a child who is habitually resident in one Contracting State, and who has been removed to or retained in another Contracting State in violation of the left-behind parent’s rights of custody, shall be promptly returned to the country of his/her habitual residence. Within the European Union, the 1980 Hague Convention continues to apply as supplemented by the Regulation which aims at creating even more ambitious rules fighting and deterring child abduction by imposing stricter obligations to ensure the prompt return of a child. This report addresses the respective provisions of the return procedure as set out by the Regulation, while it leaves the rules of the Convention untouched. The Hague Conference on Private International Law under whose auspices the 1980 Hague Convention was negotiated, holds regular meetings of Contracting States (delegations including legislators, judges and Central Authority staff) to monitor the operation of the Convention. At the meetings in 2006 and 2011/12, in which also the Commission participated, a Swiss proposal for an amending protocol was discussed but the meeting adopted the conclusion that there was no sufficient support. It was perceived that the Convention in general worked well and could and should be enhanced by soft law and implementation measures at national and regional or supranational levels, as this was done, for instance, by the Brussels IIa Regulation. This was also the position of the EU and its Member States, as explained in 2011 in a letter to the Hague Conference which further stated that the carefully balanced consensus among the Contracting States in the area of parental child abduction, which also forms the basis of the Brussels IIa Regulation, the key Union instrument in this area, should not be undermined. The present REFIT proposal pursues the same aim which is still valid. Moreover, its aim is to make the link with the United Nations Convention on the Rights of the Child and the European Charter of Fundamental Rights more obvious as these instruments provide binding guidelines for the implementation and application of the Regulation. Both in intra-EU cases and cases in relation to third States, the law applicable to parental responsibility matters is determined by the 1996 Hague Convention. As there is only one set of uniform conflict-of-laws rules on the law applicable to parental responsibility matters which works well at EU and global levels, this issue is not discussed in this Impact Assessment as there is no need for substantial changes. Recognition and enforcement of judgments given in another Member State on parental responsibility matters is governed by the Brussels IIa Regulation. The Brussels I Regulation is not directly relevant to the Brussels IIa Regulation as it explicitly excludes family matters from its scope. Nevertheless, the solution found during the latest Brussels I recast on the abolition of exequatur inspires to a certain extent the amendments proposed for the Brussels IIa Regulation in this respect. Like the proposed clarifications and changes to the cooperation provisions, they are based on, and aiming at an even stronger implementation of, mutual trust. 2.2. Matrimonial matters In matrimonial matters, the Brussels IIa Regulation regulates the jurisdiction of the courts of the Member States for divorce, legal separation and the annulment of marriages. It does not contain rules to determine which law applies to these questions. In 2006, the Commission proposed amendments to the Regulation introducing rules concerning applicable law in matrimonial matters as well as some modifications concerning jurisdiction (hereafter "the 2006 Commission proposal to amend the Regulation"). No unanimity could be reached within the Council with regard to the rules on applicable law. As a result, based on the Commission's proposals, 14 Member States initially established enhanced cooperation among themselves and adopted Regulation (EU) No 1259/2010 laying down rules determining the law applicable to divorce and legal separation (hereafter "the Rome III Regulation"); they were later joined by two more States. The Rome III Regulation therefore plays a role only as far as a possible "rush to court" is concerned (see detailed explanation in chapter 1 of the matrimonial matters). There is no direct link between the issues discussed in this Impact Assessment and the Maintenance Regulation; the scope of the latter relates to maintenance obligations arising from a family relationship while maintenance is excluded from the scope of the Brussels IIa Regulation. However, there is an indirect link: when divorce is pronounced, frequently also issues like custody and access (i.e. parental responsibility matters) and maintenance (for a spouse and/or the child(ren)) need to be resolved. These latter matters follow their own jurisdiction rules, based on different considerations (proximity in parental responsibility matters, protection of the maintenance debtor in need in maintenance matters) while the aim of the jurisdiction rules for matrimonial matters was to provide as much choice as possible for the spouses to make sure that they can easily obtain their divorce somewhere. It can happen that jurisdiction for divorce, parental responsibility and maintenance lies in different Member States. The Maintenance Regulation and to some extent also the current chapter of the Brussels IIa Regulation on parental responsibility strengthen party autonomy and encourage parties to plan for future litigation while they are still on good terms. Finally, the Commission proposed in 2011 two Regulations concerning property rights for international couples (spouses and registered partners). The purpose of the proposals was to establish a clear legal framework for determining jurisdiction and the law applicable to matrimonial property regimes and property regimes of registered partnerships and to facilitate the movement of decisions among the Member States. After four years of negotiations, the JHA Council voted on 3 December 2015 on the package of the two proposals. Unanimity which is required by the Treaty for measures in the area of family law with cross-border implications could not be reached. Member States opposing the adoption of the Regulations explained that "any initiative of the Union in that area should not interfere, even indirectly, with the fundamental principles of the family laws of its Member States". The difficulties encountered with the matrimonial property matters have been taken into account while assessing the political feasibility of any possible measures on matrimonial matters falling within the scope of the Regulation as the same adoption procedure (unanimity) is also required for the Brussels IIa Regulation. In this context, the even more ambitious proposal to consolidate all relevant EU family law instrument in one single instrument is not an option at the moment. Moreover, as suggested in the Note on "Current Gaps and Future Perspectives in European Private International Law: Towards a Code on Private International Law?" commissioned by the European Parliament's Committee on Legal Affairs in 2012, such consolidation in one instrument should be addressed only after individual instruments have been adopted for all relevant areas of family law. 3. LEGAL AND POLITICAL MANDATE The present evaluation of the Regulation and its timing are based on a legal obligation established by the Regulation itself which was recently endorsed by a political mandate. According to the Regulation, by 1 January 2012, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of the Regulation on the basis of information supplied by Member States. The report shall be accompanied if need be by proposals for adaptations. Like the Regulation itself, these adaptations are subject to the special legislative procedure defined in Article 81 para. 3 TFEU: For measures concerning family law, unanimity in the Council is required, and the Parliament will be consulted. The Juncker Commission's Political Guidelines indicate that judicial cooperation among EU Member States must be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children; by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union. At their Informal Council in July 2015, the Justice Ministers exchanged views on the part of the Brussels IIa Regulation concerning parental responsibility, on the basis of a description of some shortcomings identified by the Commission in the evaluation process. All speakers welcomed the review and agreed on the need to further improve the Regulation in matters of parental responsibility given the particular sensitivity of the subject matter. The European Parliament which follows closely the application of the Regulation called upon the Commission to address some specific shortcomings in the Regulation, so as to better take into account in particular the best interests of the child. 4. REFIT The Regulation is listed as one of the 2016 Work Programme initiatives. The evaluation of the Regulation was carried out in light of the objectives of the Regulatory Fitness and Performance Programme (REFIT) . This is the Commission's programme to ensure that EU legislation is fit for purpose and delivers the results intended by EU law makers, in other words: regulating better. This evaluation found that the Regulation is a positive asset which generally works well but identified a number of shortcomings which would need to be tackled in order to ensure that the Regulation delivers even better the results intended for it. In large measure, the objectives set for the assessment below are therefore the same as those pursued by the existing Regulation and its predecessor. Given the concerns expressed by stakeholders about the number and complexity of EU family law instruments, it is suggested to propose a recast rather than an amendment in order to enhance transparency and legal certainty, readability by the subjects and hence applicability of the instrument. This will also make it easier to follow and to evaluate in the future as some more specific reporting obligations will be proposed, thus making simpler to provide more factual evidence about its application and whether it works instead of resorting to more abstract legal analysis.

The evaluation of the Regulation is based on a qualitative and quantitative analysis. To this end, the following steps were undertaken: an application report was adopted by the Commission in April 2014 and a 3-month public consultation was carried out on the functioning of the Regulation and its possible amendments (its outcome is summarised in Annex 2). Empirical data was collected through an external study to evaluate the relevance, coherence, effectiveness, efficiency, as well as EU added value and utility of the Regulation (see Annex 3). In addition, two surveys – one with the Central Authorities established under the Regulation and another one with Member States – were launched in 2015 to collect specific data concerning parental responsibility decisions. The evaluation took also account of the rights embedded in the Charter of Fundamental Rights and the United Nation Charter on the Rights of a Child. Finally, the European Court of Justice (CJEU) has so far rendered 24 judgments concerning the interpretation of the Regulation which were taken into account. From the evaluation study, which relies on the opinion of the national experts and the interviews with legal practitioners and the representatives of the Central Authorities, several conclusions were drawn: The evaluation study highlighted the useful role played by the Regulation with respect to cross-border litigation in matrimonial and parental responsibility matters. According to the statistics, each year in the EU there are about 100,000 international divorces, and the Regulation applies to all of them. It has also helped in settling cross-border cases relating to the attribution, exercise, restriction or termination of parental responsibility which arise independently of a marital link between the parents. An estimated 150,000 to 245,000 individuals were annually involved in such proceedings. The study found that, given that the overall number of international divorces and families affected by the Brussels IIa Regulation, both the existence and further improvement of the Regulation are relevant to the needs of citizens. It also appears that between the two major areas covered by the Regulation, the matrimonial and parental responsibility matters, the latter were identified to have caused more acute problems (see below on the effectiveness and efficiency). The objectives of the Regulation are still relevant to the situation as it has evolved since its adoption. With regard to registered partnerships (whose dissolution is not covered by the scope of the instrument), the study did not identify any specific problems requiring to be addressed during the review. Looking at EU added value and utility, the study concludes that there is nothing to indicate that the Member States could have achieved the same results without EU intervention. The Regulation serves well the legitimate interests of EU citizens who have certain expectations of an effective common judicial area. The Regulation is coherent with, and fosters, the free movement of persons within the EU. However, it appears that the multitude and complexity of Union instruments in family law have led to practical difficulties, such as a lack of understanding on the part of citizens and practitioners. In particular, it may be difficult in some cases to consolidate proceedings for divorce, maintenance and child custody. The effectiveness of the Regulation was looked at in extensive detail and the study found that the Regulation has contributed to building a European area of justice in the domains of matrimonial matters and parental responsibility. It has facilitated the settlement of cross-border litigation in both areas through a comprehensive system of jurisdiction rules, a system of cooperation between Member States' Central Authorities (on parental responsibility matters only), the prevention of parallel proceedings, and ensured the mutual recognition of judgments. Furthermore, the Regulation appears to build on the right measures – i.e. uniform European rules to settle conflicts of jurisdiction between Member States and rules to facilitate the recognition and enforcement of judgments in another Member State – in order to achieve its general and specific objectives. While the Regulation is considered to be functioning well overall and to be delivering value to EU citizens, the operational functioning of the instrument is at times hampered by a series of legal issues; the current legal text is insufficiently clear or there are omissions. This is considered in particular the case for the child return procedure and for the cooperation between the Central Authorities on parental responsibility matters. With regard to parental responsibility matters, the overall efficiency of certain aspects of the child-related proceedings has been called into question. In matters concerning parental child abduction, cross-border placement of children, recognition and enforcement of judgments and cooperation between (central and other) national authorities there are excessive and undue delays arising from the way the existing procedures are formulated or applied. This has had a negative impact on parent-child relationships and the best interests of children. In addition, the requirement of exequatur generated delays per case of several months and costs reaching up to 4,000 Euro for citizens. The vague description of the cooperation between Central Authorities has often led to delays of several months or even to the non-fulfilment of requests – which is detrimental to children's welfare. The enforcement of judgments given in another Member State was identified as problematic; judgments are often not enforced or only with significant delays. For the Member States themselves, on the other hand, the Regulation itself has generated very limited costs; these mainly relate to the operation of the Central Authorities. The evaluation study stressed that the identified delays and deficiencies have a negative impact on the fundamental rights of the child and a corrosive effect on the mutual trust between the Member States on which the smooth operation of the Regulation depends. The evaluation study considered a wide range of issues in both areas; matrimonial and parental responsibility matters. These were compared with the outcome of the public consultation, discussed with experts, Central Authorities and Member States. In addition, the available data (as described in the section below) was taken into account to draw the overall conclusion from the REFIT exercise. As a result, the range of issues was narrowed down so as to enable the Commission to propose changes which would enhance the operation of the Regulation. In particular, parental responsibility matters were identified as an area which would need to be tackled urgently. This Impact Assessment presents how the above-mentioned burdens could be addressed and what possible savings could be achieved. However, the burden reduction can only be estimated to a limited extent, based on concrete examples. For instance, establishing an autonomous consent procedure and a time limit for the requested Member State to respond to the request (as proposed in the options section) would shorten the time for obtaining consent in the placement procedures to max. eight weeks instead of the current six months or more. With the proposed abolition of exequatur, delays (taking up to several months) and costs (up to € 4,000) relating to obtaining it would be eliminated. The proposed amended procedure for the return of the child in case of abduction would reduce the costs of specialised legal advice for parents (between € 1,000 and 4,000). 5. AVAILABLE DATA The availability and completeness of the statistics on the application of the Regulation is limited and differs widely across Member States. For instance, there is no reliable record of all cases heard or their outcome. A large share of the decisions relating to the application of the Regulation are not published or not easily accessible. This is in particular true for matrimonial matters and, to some extent, for child-related proceedings brought without the involvement of Central Authorities (i.e. all custody cases, part of the access cases and a minor part of the child abduction cases). Similarly, the Central Authorities do not hold any official statistics on the application of the Regulation by national courts in general. Several Central Authorities do however compile statistics on their own activity related to the application of the Regulation – for instance on the number of applications for a return of a child under the 1980 Hague Convention in conjunction with the Regulation – and the outcome of the respective court proceedings. The lack of data is therefore particularly acute for the matrimonial matters which are not monitored by the Central Authorities. Thus, for these matters no comprehensive nor specific, aspect by aspect, overview of possible difficulties exists. Nevertheless, two separate requests for specific data were made to Member States and their Central Authorities to feed this Impact Assessment which relies upon this data where it was made available. As a result of the limited availability and completeness of the published and accessible case law on the application of the Brussels IIa Regulation in the Member States, it is not possible to use the case law data as a representative quantitative source for the assessment of the magnitude of issues related to the Brussels IIa Regulation. 6. METHODOLOGY Apart from dividing the assessment into two core subjects (matrimonial and parental responsibility matters), in the following sections, the problems, objectives, policy options and their impact assessment will be dealt with separately for each of the issues identified in the evaluation of the Regulation as problematic. This approach was chosen because each issue has a specific problem definition, specific policy objectives, distinct policy options and a specific group of stakeholders affected. Moreover, the issues are not interconnected in the sense that the choice of a policy option on one issue would have an impact on the other issues. Finally, the assessment of the policy options considers clarifying the current legal text (by codyfying case law of the Court of Justice of the European Union, by rendering explicit what is implicit and by integrating available guidelines and good practice). With regard to the reduction of costs, it will be estimated whenever possible on case examples given the absence of data.

II. MATRIMONIAL MATTERS Matrimonial matters in the Regulation relate to the proceedings concerning divorce of an "international couple" whereas issues relating to maintanance and/or property of an international couple are dealt with separately in other EU instruments (see chapter 2.2.). It may often by advantageous and most efficient for both parties for all their matters to be dealt with by the same court; usually this is the court where divorce proceedings were initiated. It is therefore worthwhile considering the possibility for spouses to combine the different matrimonial proceedings before one court consistently with other existing Regulations. 1. PARTY AUTONOMY AND "RUSH TO COURT" IN MATRIMONIAL MATTERS 1.1. Problem definition Limited party autonomy Spouses in an international marriage do not have a possibility to agree on the competent court which would settle their divorce or separation. This causes some drawbacks as it has been reported in the evaluation study. First of all, it may lead to a lack of predictability for the spouses in that they do not know in advance where potential litigation will take place in the event of a divorce. The current rules offer seven possible fora to bring the divorce case based on, for example, one or both spouses' habitual residence or nationality. In addition, spouses are not able to make arrangements in advance, for example, for instance at the time of the conclusion of a marriage agreement, on the question which court shall deal with any future divorce. Such arrangements made in advance may reduce litigation on where the divorce should be handled once the couple may be on bad terms in the context of the divorce. 85% of the respondents to the public consultation identified that the Regulation does not sufficiently promote a common agreement between spouses. It has to be admitted, however, that this problem was perceived on a theoretical level (as giving more room to party autonomy in dispute settlement is a trend of the time) while no problematic cases or actual evidence to underpin the existence of tangible problems caused by the absence of a possibility to choose a court were produced. Furthermore, when a couple divorces or separates, they usually have several matters to settle at the same time. Besides the divorce, solutions must be found for the parental responsibility over the children, for the maintenance of the spouse and children, for the property consequences of the divorce. At present, it is not excluded that courts in different Member States have jurisdiction over these closely related matters. This can be inefficient as the Regulation does not explicitly offer the flexibility to consolidate the different family proceedings in advance by choosing a court (see Annex 6 explaining choice of court in other EU family law instruments). Consolidation can already be achieved under the current rules, however, if the other matters (parental responsibility and maintenance for spouse and children) are also brought in one of the divorce fora offered by the Regulation at present, provided that some other conditions are fulfilled (e.g. for parental responsibility matters: that the jurisdiction is in the best interests of the child). This situation is due to the fact that the Brussels II Regulation was the first Union instrument in the area of family law, and its conversion into the Brussels IIa Regulation only enlarged its scope with regard to parental responsibility without touching the part on matrimonial matters. Party autonomy assumed importance only in the instruments which were adopted subsequently. "Rush to court" The legislator decided not to establish a single forum but to provide a list with a variety of connecting factors to make sure spouses can find a forum to obtain their divorce and ensure flexibility which is often needed in a cross-border marriage breakdown as the situation constantly changes at short notice. However, the result, namely seven alternative (as opposed to hierarchical) grounds of jurisdiction set out in the Regulation in conjunction with the absence of uniform conflict-of-laws rules in the entire Union may in some instances induce a spouse to "rush to court", that is, to apply for divorce before the other spouse does to ensure that the law applied in the divorce proceedings will safeguard his or her own interests. A Member State might then consider that its courts are receiving too many cases which are not connected closely enough to the forum, and where it might also be inappropriate to apply that forum’s substantive law as foreseen by that State’s conflict-of-laws rules. "Rush to court" was already addressed by the harmonisation of the rules on the law applicable to divorce (Rome III Regulation). As a result of such harmonisation, any court seised within the EU would have to apply the same substantive law as determined by the common rules. Therefore, it would not matter anymore which court in the EU is seised of the matter. However, as the Regulation does not yet apply in all Member States (today it applies in 16 Member States while one more – Estonia – has announced to join soon), there may still be an incentive for spouses to act first by choosing a convenient court from the list of available jurisdictions. There is no evident trend towards convergence of Member States’ substantive divorce laws, and there are no indications that the remaining Member States will join the Rome III Regulation in a foreseeable future. When last consulted by the Commission about their intentions, the United Kingdom and Ireland declared that they had no intention to join Rome III while the other Member States where Rome III does not yet apply remained silent on the issue. Specialised legal advice may be required to take full advantage of the alternative grounds of jurisdiction in matrimonial matters. The risk that the other spouse will rush to court may encourage a spouse to rush to court herself/himself as quickly as possible or at least to consult a specialised lawyer in this regard – leading to additional costs. Several experts in the evaluation study noted that citizens may require several lawyers from different legal systems for cases where a possibility for rush to court / forum shopping exists. Therefore, legal advice and representation in two Member States could be necessary. As presented in the study, in a typical case concerning rush to court, the costs doubled, both of the lawyer and court's fees, reaching almost € 15,000. 1.2. Scale of the problem The overall number of international divorces has, with slight fluctuations, remained stable over the years, at around 100,000 per year. The institution of legal separation only exists in 12 Member States , the total number amounting to 2,500 per year. The above-mentioned problem of limited party autonomy potentially affects those among all international couples seeking divorce who would like to choose a court and would be able to agree. The number of persons actually wishing and able to do so is unknown, though. Practicing lawyers including members of the Expert Group which advised the Commission reported that such planning concerns mainly a small number of very wealthy spouses. There is, however, no quantified evidence on this matter. The problem of "rush to court", on the other hand, potentially affects only those international couples with connections to Member States not applying the Rome III Regulation as in the States where Rome III applies, the same substantive divorce law would be applied in every possible forum. 1.3. Subsidiarity Under Article 81 para. 1 TFEU, the Union has shared competence to develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. Article 81 para. 2 TFEU specifies that in order to reach the aim stated in paragraph 1, the Union shall adopt measures aimed at ensuring (c) the compatibility of the rules applicable in the Member States concerning jurisdiction, and (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States. The possible creation of a new jurisdiction rule based on party autonomy is covered by Article 81 para. 2 (c), a possible transfer rule limiting "rush to court" and the possible introduction of a hierarchy for jurisdiction grounds are based on Article 81 para. 2 (c) and (f), promoting compatibility of rules on jurisdiction and civil procedure applicable in the Member States. Shortcomings, where identified, can only be addressed through Union intervention by changing the existing EU law and cannot be addressed by the Member States acting individually.

As the Regulation's jurisdiction rules are exhaustive (with the exception of the rule allowing the use of national residual jurisdiction), the lack of party autonomy could not be addressed by the introduction of a jurisdiction rule based on party autonomy into the law of individual Member States. The "rush to court" problem cannot be dealt with by individual Member States under their own national law because the underlying reason for the rush to court lies in the fact that the substantive divorce laws in Member States are different, and depending on where divorce is pronounced, the consequences for each spouse may be different. The Rome III Regulation, by creating uniform rules on applicable law, solves this problem to a large extent for those 16 Member States in which this Regulation adopted under enhanced cooperation applies and could be sufficient to solve the "rush to court" problem in all Member States if the remaining 9 would decide to join the Rome III Regulation. However, only Estonia has announced to do so while the other Member States remained silent or explicitly declared that they did not intend to join Rome III. Therefore, a hierarchy of jurisdiction grounds or the possibility for a court to transfer jurisdiction to another Member State would be the only solutions available at this stage. As the Court of Justice has ruled that Member States are not allowed to use any discretion which may exist under their national law to transfer jurisdiction established by EU Regulations, the transfer mechanism could only be created by including it into the Regulation. The same would be true for a hierarchy of the jurisdiction grounds already offered by the Regulation. 1.4. Objectives General objective: (a)to enhance access to court (b)to ensure sound administration of justice Specific objectives: (a)to increase party autonomy and thereby enhance predictability for international divorce proceedings (b)to facilitate the consolidation of different family proceedings (c)to limit "rush to court" and thereby reduce related costs 1.5. Description of Policy Options Option 1: Baseline scenario This policy option assumes that no new initiatives would take place at EU level. Parties wishing to consolidate their matrimonial proceedings can do so already now under the existing rules: The Brussels IIa Regulation allows parental responsibility proceedings to be brought in a court having jurisdiction for divorce under the Regulation, provided that this corresponds to the child's best interests. The Maintenance Regulation also allows proceedings for child maintenance to be brought in the court where parental responsibility matters may be brought, and proceedings for spousal maintenance in the court where divorce proceedings may be brought. Therefore, by bringing also parental responsibility and maintenance issues before one of the courts having jurisdiction for their divorce under the Regulation, the spouses can consolidate all these proceedings in one forum. Only a choice in advance, which might be desired by a limited number of spouses, is not possible. The perceived problem of rush to court would continue to exist with regard to those Member States which have not yet joined Rome III. Option 2: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link In addition to what is already possible under Option 1, this policy option would allow the spouses to choose the competent court by common agreement in advance of any litigation. The choice would be limited to jurisdictions with which the spouses have a close link by virtue of habitual residence or nationality. Formal requirements would have to be included to ensure that the spouses are aware of the consequences of their choice and reduce the risk for a weaker spouse of being forced into an agreement on a forum which may be detrimental. In order to strengthen the choice of the parties, a provision would ensure that the chosen court can proceed even if a court in another Member State was seised in violation of a choice of court agreement in order to prevent the other spouse from seising the chosen court. Such solution was recently adopted in civil and commercial matters (recast of the Brussels I Regulation ). Option 3: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a possibility, for spouses who cannot agree, for the court to transfer jurisdiction to the courts of another Member State In addition to Option 2, this option would entail a possibility for a court to transfer jurisdiction for a divorce case to a court of another Member State.

Such a transfer could be envisaged in exceptional circumstances and under strict conditions, in particular if a spouse, in the absence of a choice of court, applies for divorce in a Member State, but the defendant spouse requests that the case be heard by a court of another Member State on the basis that the marriage was manifestly more closely connected with that State. The possibility to transfer jurisdiction would provide a remedy to the problems that may arise when one spouse has unilaterally applied for divorce in a certain forum against the will of the other spouse. In the interest of legal certainty, the “centre of gravity” of a marriage should be established on the basis of a closed list of connecting factors which must apply in the specific case, for example the last common habitual residence of the spouses, if one spouse still lives there. Jurisdiction based on the choice of the parties would be excluded from the possibility to transfer to another Member State. Moreover, the transfer system would be modelled on the system already in place for parental responsibility matters, requiring agreement between the two courts within a time frame specified by the Regulation. If there is no answer within this period, or the answer of the requested court is negative, jurisdiction remains with the court initially seised, so as to prevent a denial of justice or parallel proceedings. Option 4: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a hierarchy of grounds of jurisdiction In addition to Option 2, this option would imply the introduction of a hierarchy of jurisdiction grounds. For example, jurisdiction would lie in first place with the courts of the Member State of the spouses' common habitual residence. Failing that, the second court to hear the divorce case would be that of the spouses' last common habitual residence, if one of them still resides there. In cases where a current or previous common habitual residence of the spouses could not be established, the court of the defendant spouse's habitual residence could be seised. Finally, there would be a possibility to seise the court of the nationality of both spouses (in the case of the United Kingdom and Ireland, of their common 'domicile’). In summary, this option would mean that the requesting spouse would need to file an application for divorce with the first court from the list of available jurisdictions and only where no court of a Member State has jurisdiction under the first rule representing the closest connection, courts in other Member States could be seised, in hierarchical order as established by the Regulation. 1.6. Analysis of impact of Policy Options 1.6.1.Option 1: Baseline scenario Since this option would entail no change, the situation described above would continue to exist. Parties wishing to consolidate their matrimonial proceedings would continue to be able to do this under the existing rules by bringing also parental responsibility and maintenance issues before one of the courts having jurisdiction for the divorce under the Regulation even if the Regulation does not offer them the possibility to agree in advance on the divorce court itself. A possible problem of rush to court would continue to exist with regard to those Member States which have not yet joined Rome III. Infringement proceedings are not an appropriate tool with a view to improving the operation of the Regulation in the area discussed here as there is currently no rule in this Regulation addressing the problems described above. 1.6.2.Option 2: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link Effectiveness to achieve objectives: The introduction of a limited possibility for the spouses to choose the competent court would have some positive impact for the limited number of (in particular wealthy) spouses who consider this kind of estate planning useful and are able to agree on a forum because it would enhance predictability of the divorce forum. The assessment of the effectiveness to achieve this objective is however hampered by the lack of data and the fact that the actual scale of the problem is currently unknown. As regards the possibility to consolidate various family proceedings related to the divorce which can be achieved already under the current rules, this option would add the possibility for spouses to determine in advance which court shall deal with the consolidated proceedings. Moreover, for the limited number of spouses described above, this option could reduce the "rush to court" as both spouses would be bound by their common choice. Provided that the situation develops as described in the problem description, with this option there would still be an incentive for Member States to join Rome III. Where spouses did not choose a court jointly – which according to anecdotal reports from practising attorneys is indeed the case for most couples – the problem of “rush to court” continues to exist as long as the conflict-of-laws rules are not uniform. Fundamental rights: This option would have a positive impact on fundamental rights, since it would give effect to the will of the parties and thereby improve their situation in terms of easing the right to access to judicial review as embedded in Article 47 of the Charter. Stakeholders' views: Because this is standard in more recent EU instruments, the vast majority of stakeholders (85%), including Member States, are in favour of introducing a possibility of choice of court. It was however highlighted that this choice should be limited to courts to which the spouses have a substantial connection and that the formal requirements of the choice should be defined following the example provided by other EU instruments in order to prevent a weaker spouse from being forced into a detrimental agreement. Costs savings: For spouses who can agree on a court, the rush to court and thereby, the doubling of costs could be avoided. This option would however not reduce costs for spouses who cannot agree on a court. Taking the example from the problem definition (p.15), an amount of up to € 7,500 could be saved. Political feasibility: This option would be difficult to accept by some Member States given the varying definition of marriage in their national laws and their resulting difficulty to apply the instrument to the divorce of other forms of marriage, e.g. same-sex marriages. See chapter 2.2. concerning matrimonial matters. 1.6.3.Option 3: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a possibility for the court to transfer jurisdiction to the courts of another Member State Provided that the situation develops as described in the problem description, like Option 2 this option would not have any negative impact on wider adherence to Rome III. The additional possibility for the court seised in the absence of a choice of court agreement to transfer jurisdiction to another Member State would offer a remedy if the court seised clearly does not seem to be the most appropriate forum (e.g. because of the substantive law that would be applied there under the forum’s own conflict-of-laws rules). This transfer, inspired by the common law principle of forum non conveniens, however, is depending on the circumstances and is nothing a spouse could count on in advance as a general rule. The incentive for Member States who are generally open to applying foreign law to join Rome III would therefore still exist because uniform conflict-of-laws rules would offer greater predictability to the spouses with regard to the applicable law and thus the outcome of the case. In the unlikely case that all Member States join Rome III, a transfer under this option would no longer have an impact on the applicable substantive law; however, it is conceivable that courts would envisage a transfer even if Rome III applies. This shows that this option would move quite far away from the initial concept of the legislator that a wide range of possible fora should be offered to the mobile citizens to choose from at the moment they need to seise a court. Fundamental rights: This option would have some positive impact on fundamental rights, since it would give full effect to the common will of the spouses and thereby improve their situation in terms of easing the right to access to judicial review as embedded in Article 47 of the Charter. Moreover, in the absence of a choice of court it can potentially protect a potentially weaker spouse from being compelled to face court proceedings in a jurisdiction where the applicable law is detrimental to this spouse only because the other spouse was quicker in rushing to court. The discretion to transfer jurisdiction to a Member State more closely connected with the case, depending on the circumstances, which this option confers upon the judge could enhance the sound administration of justice and the access of both spouses to the appropriate forum. However, the price to pay is a decrease in predictability because spouses can no longer be certain that a court having under the Regulation will actually hear the case if seised – an idea which runs counter to the original will of the legislator.

Costs savings: This option would eliminate extra costs related to rush to court for spouses who can agree on a court. For spouses who cannot agree on a court, it may reduce costs only in situations when a spouse refrains from rushing to court because he or she is aware of the transfer provision. Political feasibility: This option would be difficult to accept for some Member States given the varying definition of marriage in their national laws and their resulting difficulty in applying the instrument to the divorce of other forms of marriage, e.g. same-sex marriages. See chapter 2.2. concerning the matrimonial matters. Stakeholders' views: For the creation of a possibility to choose a court, see the comments on Option 2. The UK, in particular pleaded in favour of introducing the possibility to transfer jurisdiction for matrimonial matters. 1.6.4.Option 4: Introduction of a possibility for the spouses to choose the competent court in a Member State with which they have a close link combined with a hierarchy of grounds of jurisdiction Effectiveness to achieve objectives:This option would completely eliminate the "rush to court" also in the absence of a choice of the parties because in those cases it would suppress the current flexibility of the applicant to choose a court from the available list of fora and direct a couple to one court only. This would be the first court from the hierarchical list and only if there is no Member State meeting the criteria of proximity defined in the list, the one next in hierarchy could be seised. Spouses would not have any reasons to “strike first” to secure that a court of a specific Member State should hear the case; each would need to address the court of the same Member State in case they want to apply for divorce. However, this option would depart fundamentally from flexible rules to deal with mobility and to meet individuals’ needs to obtain a divorce as easily as possible without sacrificing legal certainty. Precisely because the conflict-of-laws rules are not uniform yet (nor are the substantive divorce laws of the Member States), the forum still has in certain cases an impact on the outcome of the proceedings. This is why parties were given the possibility to seize a broad range of possible courts in the current text of the Regulation. This option would run counter to this idea and impose a certain forum and thus a certain applicable law – and therefore a certain outcome of their proceedings – on the spouses without any flexibility. Moreover, the grounds adopted are based on the principle of a genuine connection between the person and a Member State. Their acceptance by all Member States was the effort to find points of agreement acceptable to all. This stance seems to be reflected also in the public consultations (see below). This option could also have a negative impact on the future participation of additional Member States in the Rome III Regulation. If it is perceived as a problem that the outcome of the same divorce case will be different if brought in one or the other of a number of available fora (due to non-uniform conflict-of-laws rules), one solution can be to unify the conflict rules while another solution would be to limit the number of fora to one. The Union legislator has already decided that the first solution (uniform conflict-of-laws rules) is a good one; it is questionable whether the success of this solution should be diminished by the adoption of other solutions which, while to some extent achieving the objective sought, would at the same time entail negative consequences as well. Costs savings: This option would fully eliminate the extra costs related to rush to court for all spouses regardless of whether they made a choice of court because there would always only be one forum available (thus no incentive for a "rush to court"). Stakeholders' views: The respondents to the public consultation were asked to identify the remedy for rush to court situations. The majority (69%) thought that the risk of a ‘rush to court’ might be reduced by establishing an order of priority of the several alternative grounds for jurisdiction so as to prevent spouses from beating each other in filing a claim. However, Member States (BE, CZ, FR, PL, NL) stated that the ways of identifying the court responsible in matrimonial matters should not be revised in order to reduce the risk of a ‘rush to court’. According to France, even though the existence of several grounds of jurisdiction theoretically increases the risk of a ‘rush to court’, in practice, the grounds of jurisdiction set out by the Regulation mostly correspond to specific factual situations that occur when the habitual residence criterion cannot be applied, and the current alternative grounds should therefore be maintained. Political feasibility: This option would be difficult to accept for some Member States given the varying definition of marriage in their national laws and their resulting difficulty in applying the instrument to the divorce of other forms of marriage, e.g. same-sex marriages. See chapter 2.2. concerning matrimonial matters. 1.7. Comparing the Options and preferred Policy Option Objectives/Impacts Option 1 Baseline scenario Option 2 Choice of court Option 3 Choice of court + possibility for court seised to transfer jurisdiction to another Member State Option 4 Choice of court + hierarchy of grounds for jurisdiction Provide for party autonomy and thereby enhance predictability for spouses 0 This option would provide for party autonomy and enhance predictability. However, this would only be the case for the limited number of spouses who wish to and are able to agree on one forum from the list of possible fora offered by the Regulation already today. This option would enhance predictability for spouses who can agree on a court. For those who cannot agree; it introduces legal uncertainty as the decision to transfer would depend on the discretion of the judges in the two Member States concerned in the individual case. This option would enhance legal predictability for all couples (notwithstanding the existence of an agreement). However, a hierarchy of jurisdiction grounds would reduce the possibility for the plaintiff to choose from a broad range of fora, and hence the broad access to court which currently exists and is considered important, as long as Rome III does not apply in all Member States. Enhance access to court by consolidating different family proceedings Consolidation could be achieved by bringing all family proceedings in one of the divorce fora offered by the Regulation. Same effect on consolidation as Option 1 but the limited number of spouses wishing to and able to do so could agree in advance which of the available fora this shall be. The number of spouses who may be in such a situation may be expected to be limited. This option would further help to consolidate for those who can agree on a court by making the possibility to choose a court jointly more visible. If no choice was made, consolidation may be achieved by bringing all family proceedings in one of the divorce fora offered by the Regulation; if the spouses prefer another forum, it could be obtained through transfer decided by a judge but this depends on judicial discretion in the two Member States concerned. This option would further help to consolidate for those who can agree on a court by making the possibility to choose a court jointly more visible. If no choice was made, consolidation may be achieved by bringing all family proceedings in the single divorce forum offered by the Regulation. Limit rush to court 0 Rush to court would be eliminated for spouses who can agree on a court but this option would not have any positive impact for those spouses who did not or could not choose a forum jointly. Rush to court would be eliminated for those spouses who can agree on a court. It might be reduced for those spouses who cannot agree on a court as they know that the court seised would have exceptionally the powers to transfer jurisdiction to a more appropriate forum. Rush to court would be eliminated for all couples as only one court at a time could be seised by either spouse to hear the divorce case. Ensure sound administration of justice The objective is already partially achieved as different proceedings can be combined in one of the divorce fora offered by the Regulation. The objective would be better achieved as in Option 1 because different proceedings could be combined in either the chosen court for spouses who agree on a court or in one of the divorce fora offered by the Regulation for others. The objective would be achieved to a similar extent (same as Option 2) but for those spouses who cannot agree the judge could transfer jurisdiction to another Member State where other proceedings are pending. However, the transfer possibility may bring in an important element of uncertainty at the beginning of the proceedings and trigger litigation on the jurisdiction question. This option would have mixed impacts. It would have a positive impact on the administration of justice for spouses who can agree on a court and combine their proceedings; it may have negative impact on couples who cannot agree as no flexibility would be granted even to the applicant to choose a court unilaterally. Costs savings 0 Would reduce costs only for those spouses who agree on a court. Would reduce costs for spouses who can agree on a court and could in some instances reduce them for those who cannot do so while increasing costs in other cases. Would fully eliminate the extra costs relating to rush to court regardless of the existence of a choice of court agreement. Political feasibility In the light of the requirement of unanimity and the probable varying views regarding jurisdiction in matrimonial matters, the baseline scenario seems at this stage the best possible option. In the light of the requirement of unanimity and the probable varying views regarding jurisdiction in matrimonial matters, including choice of court, this option does not seem politically feasible. In the light of the requirement of unanimity and the probable varying views regarding jurisdiction in matrimonial matters, including choice of court and transfer of jurisdiction, this option does not seem politically feasible. In the light of the requirement of unanimity and the probable varying views regarding jurisdiction in matrimonial matters, including choice of court, this option does not seem politically feasible. In addition, the possible introduction of a hierarchy of jurisdiction grounds is very controversial among stakeholders. Finally, the broad access to court was one of the crucial elements of the final agreement on the existing Regulation. At this time, Option 1 is the preferred policy given the fact that in line with currently available data, the existing rules have proven to work to a large extent satisfactorily, and the drawbacks of the other options make them currently not feasible or desirable. While Option 2 would strengthen party autonomy and in particular meet the operational objective to introduce the possibility for spouses to choose a court by agreement, this only concerns a limited number of spouses. In addition, the benefits brought by this option would not outweigh the risks inherent in opening discussions on matrimonial matters at this moment in time. Option 3 would reach that same objective and encounter the same risk; the possibility for a court to transfer jurisdiction to another Member State, while having certain advantages in good administration of justice, would entail legal uncertainty and may trigger litigation at the beginning of the proceedings. It is questionable whether the problem of rush to court, which is limited to certain Member States, would justify introducing these elements of uncertainty and risk of litigation for all Member States. Option 4 would reach the same objective as Option 2; however, a hierarchy of jurisdiction rules would reduce the broad access to court which currently exists. As long as Rome III does not apply in all Member States, it is important that spouses continue to have a number of fora available as the outcome of proceedings can be different, depending where proceedings are brought. Therefore, it appears that at this stage, because of the limited data to underpin the identification of workable solutions there is limited added value in proposing changes on these matters. Furthermore, in the light of the requirement of unanimity any change to the current jurisdictional regime on matrimonial matters seems highly difficult, taking into account the divergences between Member States' national family laws and their respective views on how to deal with matters of jurisdiction. Options 2 through 4 therefore do not seem politically feasible at this stage. As the negotiations in the Council on the matrimonial property regimes showed, there is currently no possibility to unanimously agree on a proposal which concerns divorce of a marriage or any related aspects. Given the potential benefits of improvements to the Regulation on this matter, the matter may be re-considered in the future on the basis of further evidence gathered, at a time when the national laws of the Member States may have evolved such that a consensus is more likely to be achieved. 2. THE OPERATION OF THE REGULATION IN THE INTERNATIONAL LEGAL ORDER 2.1. Problem definition Risk of difficulties in finding a suitable court to settle divorce for EU citizens living in a third State A specific study analysing the situation of EU citizens who live in a third State but retain strong links with a certain Member State and want to get divorced highlighted several problems: citizens either cannot get access to a court at all, to a court in the EU or they cannot have their judgment (obtained in a third country) recognised in the EU. In situations where the spouses are not habitually resident in the territory of a Member State and do not have a common EU nationality, the Regulation does not provide any basis of jurisdiction. International jurisdiction is established on the basis of the national rules of the Member States (so-called "residual jurisdiction"). In practical terms this means that in about half of the Member States the EU nationality of a plaintiff spouse alone is sufficient to bring proceedings in his/her Member State of nationality. In the other half, it is not possible for residents of third countries to bring proceedings in their Member State of nationality alone, but only in conjunction with other connecting factors. In the end, 24 Member States do provide residual jurisdiction for the case described above. In the remaining 4 Member States, this may lead to situations where no court at all in the EU has jurisdiction to deal with an application for divorce because of the different criteria being used to establish it; this forces spouses to file their divorce proceedings in a third State if that State has jurisdiction under its own law. Since a decision issued in a third State cannot be recognised in a Member State pursuant to the Brussels IIa Regulation, but only pursuant to national rules or applicable international treaties, divorcing, spouses could face problems to have their divorce recognised in their respective countries, and it can even happen that their divorce will be recognised in the home Member State of one of the spouses but not in the home Member State of the other. This difference in civil status has a negative impact on the freedom of movement and the right to respect for a person's private and family life. A person wishing to remarry in a Member State cannot do so if the divorce pronounced in a third State is not recognised under that Member State's national law while at the same time that Member State did not provide a forum for the divorce to be pronounced there. In other words, Union law regulates only the larger part of the international jurisdiction of the Member States' courts, leaving a remaining small part to national law. The national experts in the framework of the evaluation study and practitioners in the public consultation both criticised the Regulation for its too complex and impractical solution in cases where the defendant spouse is not habitually resident in a Member State and the spouses are not nationals of the same Member State. Some guidance on this matter was given by the CJEU but the situation is still perceived as unsatisfactory.

In terms of costs, spouses need to seek advice of a specialised lawyer to investigate foreign law systems or, as the case may involve investigation in several Member States, the costs can be multiplied. The costs for specialised legal advice vary considerably across the EU. In the evaluation study, the additional costs for international cases have been estimated to range from € 500 (in Hungary) to € 12,500 (in the UK) per case. Example: the German/Dutch couple living in a third State A German/Dutch couple have lived for some years in a third State. As their relationship deteriorates, the German wife would like to divorce, preferably before a German court. However, she cannot apply for divorce in Germany or in any other Member State. None of the grounds of jurisdiction of the Brussels IIa Regulation is applicable since the couple are not habitually resident in a Member State and are not of common nationality. In such circumstances, the courts of the Member States may avail themselves of their national rules of jurisdiction. Under national law, the German courts have international jurisdiction if one of the spouses is German. However, while the Dutch husband could bring divorce proceedings in Germany based on these rules, the German wife cannot apply for divorce in Germany under the German rules of jurisdiction, since the Dutch husband may not be sued in Germany under national law according to the Regulation. Nor can the wife apply for divorce in the Netherlands, since Dutch law does not provide for jurisdiction in these circumstances. Consequently, the German wife is unable to apply for divorce in any Member State. Even if the courts of the third State of the couple's residence happen to have jurisdiction to deal with the matter, it may be difficult to have a divorce pronounced in the third State recognised in Germany. It is also possible that the divorce will be recognised in Germany but not in the Netherlands, with the effect that the spouses are considered to be still married in the Netherlands while they are considered divorced in Germany. Parallel litigation and risk of irreconcilable judgments when the same matter is pending before a court in a Member State and a court in a third country In some cases, proceedings between the same parties on the same subject matter are pending in parallel (lis pendens) before the courts of an EU Member State and the courts of a non-EU country. The expert group pointed out that in this situation, a court of a Member State does not have any discretion under the Regulation, according to the current rules, to take into account the proceedings pending in a third State. This can eventually lead to two irreconcilable judgments. 2.2. Scale of the problem There is little indication about the scale of the problem. The number of potentially affected people can be based on the numbers of EU citizens who live in third countries. There is no reliable single source of data for this group, but rather disparate sources which cover the main destination countries . It is estimated that more than 20 million European citizens live permanently in a non-EU country. This number has to be narrowed down to those persons who are married, and the rate of marriage breakdown. Within the EU , every year around 10% of the total number of divorces relate to international couples. One may assume that EU citizens living in third States would largely behave in the same way as those within the EU. 2.3. Subsidiarity The creation of a new rule on unified residual jurisdiction and/or forum necessitatis is based on Article 81 para. 2 (c) TFEU which establishes shared EU competence for common jurisdiction rules which has already been exercised. Currently, for spouses living outside the EU, the Regulation only contains a uniform jurisdiction rule if they have a common EU nationality. In all other cases, jurisdiction for their divorce is left to the national law of their respective States. Member States have diverse policies as regards this issue and cannot alone remedy the situation. As the problem affects solely couples with two different EU nationalities and couples involving third-State nationals, the solution goes beyond the powers of a single Member State. The need for EU action is therefore even stronger for these couples than it is for spouses having the same EU nationality (and for whom the Regulation already provides uniform jurisdiction). The introduction of a discretionary rule dealing with parallel proceedings pending in a Member State and in a third State (lis pendens) can be based on Article 81 para. 2 (c) TFEU (common jurisdiction rules) together with Article 81 (f) TFEU (elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States). Some Member States already have such a rule in their national law and exercise it; others have it but are uncertain whether they may decline jurisdiction attributed to them by the Regulation in favour of a third State. Others do not have a rule on lis pendens vis-à-vis third States and have no intention to create one. This leads to an unequal application of the jurisdiction rules of the Regulation in the different Member States which can only be remedied by EU action. 2.4. Objectives General objectives: (a)to ensure equal access to justice in the Union for both spouses (b)to enhance sound and efficient administration of justice Specific objectives: (a)to simplify the regulatory framework on international jurisdiction in divorce cases in the EU and its Member States (b)to introduce flexibility for courts to take into account proceedings pending in third States. 2.5. Description of Policy Options Option 1:Baseline scenario This policy option assumes that no legislative initiatives bringing about substantive changes would take place at EU level. This does not exclude, however, a clarification of the Regulation's rules determining in which cases and under which conditions Member States may apply their rules on residual jurisdiction, accompanied by further explanations in a revised version of the Practice Guide on the Regulation which was published, and which is updated as necessary, by the Commission.

Option 2: Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a common EU nationality and living in a third State combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries This option would introduce a rule creating a forum necessitatis while deleting the current reference to residual jurisdiction under national law. Where no court of a Member State has jurisdiction under the Regulation, the courts of a Member State would be allowed, on an exceptional basis provided for in the Regulation, to hear the case if proceedings cannot be brought in a third State with which the case is closely connected (because divorce cannot be granted at all there) or would be practically impossible (e.g. because of war), provided that the case has a sufficient connection with the Member State of the court seised. This rule would ensure that each spouse of a couple not having the same EU nationality and living in a third country has a forum to obtain a divorce, but it would only provide a forum within the EU if the spouses cannot obtain a divorce in a third country. If the spouses could, e.g., obtain a divorce in the third State of their common habitual residence, the forum necessitatis would not apply. Furthermore, this option would entail the introduction of a possibility for the courts in a Member State to take into account proceedings pending in third States by granting a discretionary stay of proceedings if there is an action involving the same parties and the same subject matter (divorce, legal separation or marriage annulment) pending in a non-Member State, provided that there is a reasonable prospect that the resulting judgment will be recognised in the Member State(s) concerned. Option 3: Creation of a uniform and autonomous rule on residual jurisdiction for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries This option would introduce a uniform and exhaustive rule on residual jurisdiction for cases where the spouses do not have a common EU nationality and live in a third State. This rule would replace the national rules on residual jurisdiction existing in most Member States and close a gap for nationals of those Member States who do not provide jurisdiction for such cases. It ensures access to a court in the EU for spouses who live in a third State but retain links with a certain Member State of which they are nationals or in which they have resided for a certain period, even if the spouses could find a forum in a third State. The scope of this rule would correspond to the general rule of jurisdiction (Article 3) and would apply to divorce, legal separation and marriage annulment. The rule of the Regulation which currently protects citizens of EU Member States and persons habitually resident in a Member State from some of the exorbitant jurisdiction grounds of national law which has given rise to confusion could be deleted because the courts of the Member States would no longer be allowed to use those national rules in international divorce cases. Furthermore, this option would introduce a discretionary lis pendens rule vis-à-vis third countries like Option 2. Option 4: No harmonisation of residual jurisdiction, but deletion of Article 6 which protects a defendant having EU nationality or domicile from being sued in another Member State under residual jurisdiction rules of national law and introduction of a discretionary lis pendens rule vis-à-vis third countries This option would not add a rule on forum necessitatis or residual jurisdiction, and it would leave the residual jurisdiction rules provided by the national law of the Member States intact. The only change would be the deletion of the protective rule in Article 6 which limits the exercise of these national jurisdiction rules and protects defendants having an EU nationality or domicile from being sued in another Member State under the jurisdiction rules of national law (while they could still bring proceedings themselves there). As in Options 2 and 3, a discretionary lis pendens rule vis-à-vis third States would be added. 2.6. Analysis of impact of Policy Options 2.6.1.Option 1: Baseline scenario For the impacts of this option see problem definition. There are no other legislative initiatives at global or Union levels forthcoming on these issues. As the mobility of people in general is increasing, it may be assumed that also the number of spouses living outside the EU but having a connection with a Member State and wishing to file for divorce there will increase. Infringement proceedings are not an appropriate tool with a view to improving the operation of the Regulation in the area discussed here as there is currently no rule in this Regulation offering jurisdiction for spouses not having a common EU nationality and living in a third State. As for the operation of the Articles allowing the use of national jurisdiction rules and protecting the defendant and their interaction, infringement proceedings, which need to be based on a perceived structural deficit in the implementation of the Regulation, would promise little success as the provisions are admittedly unclear. 2.6.2.Option 2: Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries Effectiveness to achieve objectives: The deletion of the reference to national residual jurisdiction combined with the creation of a forum necessitatis rule would have a positive impact on ensuring access to a court for spouses not having a common EU nationality who are living in a third country but have a sufficient connection to the EU by way of their previous common habitual residence or by way of the nationality (or, in the case of the UK and Ireland, the ‘domicile’) of one of the spouses or in situations where a risk of denial of access to justice would exist outside the EU. It would no longer allow the use of national rules on residual jurisdiction but ensure that spouses not having a common EU nationality living in a third State have access to a court at all, albeit perhaps in the third State, and only if that is not the case, to an EU court in order to obtain a divorce, legal separation or the annulment of their marriage. Moreover, the option would end the existing general inequality illustrated by the example and created by the current text of the Regulation, namely that only one spouse has access to the courts of a Member State under residual jurisdiction provided by national law while the other spouse doesn't. The risk that the judgment rendered in the EU will not be recognised by the third State of which one or both of the spouses are nationals or where the spouses were habitually resident if that State also has jurisdiction under its own law is minimised because the forum necessitatis will by definition only apply if proceedings could not be brought in that third State. This option does not solve the problem that a divorce pronounced in a third State might be recognised in one EU Member State but not in the other if the spouses are nationals of different EU Member States. The objective of simplification would be reached at the jurisdiction level because the varying national residual jurisdiction rules would be replaced by a single and uniform rule offering access to the EU courts to all citizens under the same conditions and ensuring that no denial of justice occurs. As a corollary of this harmonisation, the Regulation's current rule protecting nationals of EU Member States and persons habitually resident in a Member State from the exorbitant bases of jurisdiction contained in the national law of the Member States can be deleted. The court seised, however, would still need to examine whether proceedings could be brought in a third State before being allowed to base its jurisdiction on the forum necessitatis rule. In cases where the divorce judgment pronounced in a third State is likely to be recognised in the Member States concerned, the proposed rule on lis pendens vis-à-vis third States would enhance the efficiency of justice by allowing the courts of a Member State having jurisdiction under the Regulation to give priority to the proceedings brought earlier in that third State. Fundamental rights: Access to justice would be improved for spouses with a sufficient connection to the EU. If a divorce is obtained in a third State, though, the problem described above will persist, namely that the divorcees' civil status may vary from one Member State to another, thereby hampering their right to free movement and to respect for private and family life. Costs savings: This option would not result in cost savings related to specialised legal advice as it would be necessary to assess whether the spouses cannot bring their divorce proceedings in a third State. Stakeholders' views: The majority of respondents (78% i.e. 132 of 170 responses) believe that in the cases outlined above, the Regulation should allow an EU court to exercise its jurisdiction. Among practitioners, 80% think that the Regulation should offer a forum necessitatis instead of leaving jurisdiction to the diverse rules of the Member States on residual jurisdiction. This resembles responses from private individuals (78%) and from academics (67%). Moreover, the majority of those with practical experience agree that the Regulation should ensure access to justice through a forum necessitatis while no longer allowing the use of national rules on residual jurisdiction. A harmonisation through deletion of the permission to use national jurisdiction rules combined with a forum necessitatis was also the proposal favoured by the expert group which advised the Commission as the best way forward. Of those Member States that responded, five (CZ, DE, NL, PL, PT) were in favour of creating a forum necessitatis and two against (FR and BE who both denied the need for it because their national law already provides for a forum necessitatis based on nationality). Political feasibility: This option would be difficult to accept for some Member States given that there are widely divided views on the need for unification and little evidence. In addition, given the varying definition of marriage in the national laws of Member States and their resulting difficulty in applying the instrument to the divorce of other forms of marriage, e.g. same-sex marriages, work towards a consensus on any jurisdiction rule in matrimonial matters is difficult at this time. See chapter 2.2. concerning matrimonial matters.

2.6.3. Option 3: Creation of a uniform and autonomous rule on residual jurisdiction for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries Effectiveness to achieve objectives: The creation of an autonomous rule on residual jurisdiction would have a strong positive impact on ensuring access to a suitable court in the EU for spouses not having a common EU nationality who are living in a third country but have a close connection to the EU by way of their previous common habitual residence or by way of the nationality (or, in the case of the UK and Ireland, the ‘domicile’) of one of the spouses. It would ensure that they both have access to an EU court in order to obtain a divorce of their marriage, even if the national jurisdiction rules of the relevant Member State do not allow residents of third countries to bring proceedings in that Member State. The option would end the existing general inequality illustrated by the example and created by the current text of the Regulation, namely that only one spouse might have access to the courts of a Member State under the residual jurisdiction rules of national law while the other spouse doesn't. Like the previous option, this option would have a strong positive impact on simplifying the regulatory framework on international jurisdiction for divorce for spouses not having a common EU nationality who are living in a third country by establishing clear harmonised rules on residual jurisdiction for all Member States. As a corollary of this harmonisation, the Regulation's current rule protecting nationals of EU Member States and persons habitually resident in a Member State from the exorbitant bases of jurisdiction contained in the national law of the Member States can be deleted. The existence of a uniform jurisdiction rule makes the forum even more predictable than under the previous option only providing a forum necessitatis, and the article protecting respondents from being sued "by surprise" in a forum with which they have only weak or no connections is thus no longer necessary. These measures would decrease the amount of investigation or possible confusion caused by consulting the law of each Member State. This option does increase the risk, however, that parties who thus have access to a court in the EU obtain a judgment which may not be recognised by the third State of which one or both of the spouses are nationals or where the spouses were habitually resident if that State also has jurisdiction under its own law. This option also does not solve the problem that a divorce pronounced in a third State might be recognised in one EU Member State but not in the other. In cases where the divorce judgment pronounced in a third State is likely to be recognised in the Member States concerned, the proposed rule on lis pendens vis-à-vis third States would enhance the efficiency of justice by allowing the courts of a Member State having jurisdiction under the Regulation to give priority to the proceedings brought earlier in that third State. Fundamental rights: Access to justice would be improved for spouses not having a common EU nationality with a close connection to the EU. It would be ensured that they can obtain a divorce within the EU which is then automatically recognised by operation of law in all other EU Member States. There is a risk, however, that the judgment rendered in the EU will not be recognised by the third State of which one or both of the spouses are nationals or where the spouses were habitually resident if that State claims jurisdiction under its own law. Costs savings: For all spouses living abroad but retaining a sufficient connection with the EU this option would decrease the amount of investigation into the law of each Member State and thereby it would reduce costs estimated to range from € 500 to € 12,500 per case. Stakeholders' views: A significant majority (77%) of respondents maintain that it would be useful to address the lack of a uniform rule on residual jurisdiction for all cases. In particular, stakeholders with practical experience of the Regulation answered positively to this question. Of those Member States that responded, three (NL, PL, PT) were in favour of creating a uniform rule on residual jurisdiction if no court in a Member State has jurisdiction under the Regulation and three against: FR and BE both denied the need for it because their national law already provides for residual jurisdiction based on nationality, CZ gave no reasons, and DE stated that a redraft of Articles 6 and 7 would be sufficient and could leave the national rules on residual jurisdiction intact. The UK also expressed hesitations. Political feasibility: This option would be difficult to accept for some Member States given that there are widely divided views on the need for unification and little evidence of the scale of the problem. In addition, given the varying definition of marriage in the national laws of Member States and the diverging views of Member States in how to deal with matters of jurisdiction as a result thereof it seems difficult to work towards a unanimous agreement on any jurisdiction rule in matrimonial matters at this time. See chapter 2.2. concerning matrimonial matters. 2.6.4.Option 4: No harmonisation of residual jurisdiction but deletion of Article 6 which protects a defendant having an EU nationality or domicile from being sued in another Member State under residual jurisdiction rules of national law and introduction of a discretionary lis pendens rule vis-à-vis third countries Effectiveness to achieve objectives: The deletion of Article 6 which protects a defendant having EU nationality or domicile from being sued in another Member State under residual jurisdiction rules of national law would have a positive impact on ensuring equal access to a court in the EU for spouses not having a common EU nationality who are living in a third country but have a sufficient connection to the EU by way of their previous common habitual residence or by way of the nationality (or, in the case of the UK and Ireland, the ‘domicile’) of one of the spouses. In the example given above, this option would allow not only the Dutch husband but also the German wife to bring divorce proceedings in Germany. This option would leave the national rules on residual jurisdiction intact and open them to both spouses by removing the protective limitation. The option would not solve the problem, however, that currently only half of the Member States have rules on residual jurisdiction which offers their nationals living in a third State a forum without any further conditions. So while access to justice would be equal for both spouses of a couple, there would still be couples having, and others not having access to a residual forum in the EU. The regulatory framework would be simplified by this deletion because the relationship between that protective article and the article allowing the use of national jurisdiction rules was interpreted in different ways, thus giving rise to confusion and therefore delays. Legal clarification was requested by many. However, this option would not deal with the current situation that some spouses who are nationals of different EU Member States are forced to file for divorce in a third State because there is no jurisdiction in any EU Member State under the Regulation and under national law. Moreover, like the other options, it would not solve the problem that a divorce pronounced in a third State might be recognised in one EU Member State but not in the other. In cases where there is jurisdiction in the EU under the Regulation and a divorce judgment pronounced in a third State is likely to be recognised in the Member States concerned, however, the proposed rule on lis pendens vis-à-vis third States would enhance the efficiency of justice by allowing the courts of a Member State having jurisdiction under the Regulation to give priority to the proceedings brought earlier in that third State. Fundamental rights: The protection of the fundamental right of access to justice would be somewhat improved for citizens with a close connection to the EU (through nationality/’domicile’ or previous habitual residence). It would be ensured that they can both obtain a divorce within the EU (albeit perhaps not in their own Member State of nationality) which is then automatically recognised by operation of law in all other EU Member States. Inequality between the spouses in one single couple in this respect would be eliminated. However, there would still remain unequal access to court in the EU for spouses in general. In addition, spouses in particular in couples formed of EU nationals from two different Member States would in the future be exposed to being sued in a "surprise jurisdiction" provided by the national law of the Member State of the other spouse. Costs savings: For the applicant spouse living outside the EU but retaining a strong connection with the EU, this option would decrease the amount of investigation into the law of each Member State in order to find jurisdiction and thereby it would reduce costs estimated to range from € 500 to € 12,500 per case. For the defendant spouse, however, who has to face proceedings in a "surprise" jurisdiction provided for by the national law of a Member State, additional costs for specialised legal advice are likely to arise. Stakeholders' views: During the public consultation, this option of deleting the protective article was not proposed by anyone. Only one Member State (DE) mentioned – without providing further details – that a mere redraft of the Articles allowing the use of Member States' rules on residual jurisdiction and protecting defendants with EU nationality or residence/domicile could solve the problems while leaving the rules on residual jurisdiction of the Member States in their national law intact. Political feasibility: This option is likely to be difficult to accept for some Member States given that there are widely divided views on the need for unification and little evidence on the scale of the problem. Moreover, as the so-called exorbitant grounds of jurisdiction of a single State under its national law are often considered politically undesirable by other States, there will be little incentive for them to agree to the abolition of a rule protecting their own nationals against the exorbitant jurisdiction rules of other States. In addition, given the varying definition of marriage in the national laws of Member States and diverging views of Member States in how to deal with matters of jurisdiction as a result thereof it seems difficult to work towards a unanimous agreement on any jurisdiction rule in matrimonial matters at this time. See chapter 2.2. concerning matrimonial matters. 2.7 Comparing the Options and preferred Policy Option Objectives/Impacts Option 1 Baseline scenario Option 2 Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries Option 3 Creation of a uniform and autonomous rule on residual jurisdiction for spouses not having a common EU nationality and living in a third State, combined with the deletion of the reference to residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries Option 4 No harmonisation of residual jurisdiction but deletion of Article 6 which protects a defendant having an EU nationality or domicile from being sued in another Member State under residual jurisdiction rules of national law and introduction of a discretionary lis pendens rule vis-à-vis third countries Ensure equal access to court for both spouses