Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children"

(1999/C 368/09)

On 12 July, the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 30 September 1999. The rapporteur was Mr Braghin.

At its 367th plenary session (meeting of 20 October 1999), the Economic and Social Committee adopted the following opinion by 53 votes to four, with one abstention.

1. Content and background of the proposal for a Council Regulation

1.1. The proposal arises from the need to replace the Convention adopted by the Council and signed by all the Member States on 28 May 1998, with Community legislation, as required by the Amsterdam Treaty.

1.2. The Commission has taken the substance of the Convention and its explanatory report and amended any provisions that were incompatible with the proposed instrument and the guidelines for judicial cooperation subsequent to the Amsterdam Treaty.

1.3. The form chosen for the instrument - a Regulation - is warranted by the need to apply strictly defined, harmonised rules for the direct, uniform and mandatory implementation of precise, unconditional provisions in specific areas such as jurisdiction, recognition and enforcement of orders on the dissolution of the marriage link and custody of children, and by the need for a common, early implementation date to be set for the 12 countries to which the new Chapter IV of the TEC applies.

1.4. As the subject matter now falls within the ambit of judicial cooperation in civil matters (Art. 65) and the new Chapter IV of the Treaty establishing the European Community, the instrument must be adopted using the procedure provided for under Treaty Article 67, whereby during a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council is to act unanimously.

1.5. The purpose of the proposal is to harmonise the rules of international private law in the Member States for jurisdiction on annulment, divorce, separation and parental responsibility for the children of both spouses, and to provide a simplified procedure to facilitate the rapid and automatic recognition and enforcement of relevant judgments(1).

1.6. The proposal fills a gap in the application of the 1968 Brussels Convention (Article 1 of which explicitly excludes matters relating to the law of persons) while restricting itself to the aspects mentioned in the paragraph 1.5 above.

1.7. With the aim of introducing uniform standards on conflicts of jurisdiction and simplifying formalities governing the rapid and straightforward recognition and enforcement of the relevant judgments, Chapter II defines the objective criteria adopted for forums of jurisdiction, authority to make judgments on parental responsibility over children of both spouses, provided this is connected with matrimonial proceedings, examination as to jurisdiction and admissibility, lis pendens and provisional and protective measures.

1.8. With the objective of speeding up the recognition and enforcement of judgments on divorce, legal separation or marriage annulment and parental responsibility, reducing to a minimum grounds for non-recognition, Chapter III establishes the principle of automatic recognition, grounds of non-recognition, prohibition of review of jurisdiction of the court of origin and non-review as to substance, as well as the procedure for enforcement, notice of the decision and appeal against the enforcement decision (court of appeal and means of contest).

1.9. The common, transitional and general provisions are designed to protect the rights of appellants, guarantee genuine applicability of the date of entry into force of the Regulation, regulate relations with international conventions and implementation agreements between Member States, while ensuring respect for international treaties (Concordats) concluded by Portugal, Italy and Spain with the Holy See.

1.10. The final provisions state that the Commission shall monitor application of the Regulation and shall submit proposals for amendments if need be, at the end of a five-year period.

2. General comments

2.1. The act incorporating the convention adopted by the Council on 28 May 1998 builds on proposals and projects launched in 1994. Progress made by the European Union in the meantime ought to have warranted more ambitious proposals, both as regards the scope of application and a content better suited to achieving genuine harmonisation of the legal framework, at least as far as procedure is concerned. While recognising the value of safeguarding social, cultural, religious and traditional diversity across the Member States, attention should be paid to the European public's growing demand for equivalent guarantees to those they hold before the courts in their own country in all other Member States.

2.2. The decision to opt for a Regulation is wholly justified by the content of the proposal and the need for a rapid approval process with guarantees regarding deadlines and content. The Committee notes, however, that the Regulation covers a very limited field, and consequently hopes that the action plan approved in Vienna in November 1998 will be implemented(2).

2.3. The scope of the Regulation is limited to procedural aspects regarding the jurisdiction, recognition and implementation of orders on marriage annulment, divorce and separation, and parental responsibility for children of both spouses.

2.3.1. On such sensitive matters, and to ensure the European public is provided with a consistent degree of freedom, security and justice (Article 2 of the Treaty establishing the European Community), enforcement procedures should be harmonised as soon as possible, particularly as regards time-frames (final deadlines for requests, appeals against judgments, etc.).

2.3.2. The need to harmonise the law, with a view to speeding up legal proceedings, should be a key priority in European Union action, and should be applied to all other procedural aspects and built into a specific Commission action plan.

2.3.3. The principle of protecting the weaker party should be heavily underlined, and it is thus hoped that the Regulation's provisions on parental responsibility will be extended to include children of previous marriages and adopted children, who risk further suffering in view of the fact that they are specifically excluded from the Regulation. The Committee hopes, however, that both national and Community legislation will increasingly take on board the need to include better protection of the weaker party.

2.3.4. With regard to the implementation of the Regulation, the Committee would reiterate the need to design measures to protect the best interests of minors and uphold their fundamental rights, in accordance with international law. Here the Committee would refer back to the principles already expressed in its opinion CES 976/98, of 2 July 1998.

2.4. The term "courts" refers both to Member State judicial authorities with jurisdiction in these matters, and to administrative authorities whose jurisdiction is officially recognised in some Member States. This situation, though compatible with the national legal systems, is however, worrying. The Committee would prefer uniformity for the legal bodies authorised and designed to deal with these sensitive matters, to ensure they are appropriately specialised and professional.

2.5. The concept of parental authority and responsibility varies from one Member State legislation to another. Since protecting the legal rights of children is the top priority, and in order to avoid differing levels of protection for EU citizens in this sensitive area, the Committee calls for common parameters to be defined for all the Member States, while respecting their social, cultural and religious diversity and national traditions. In particular, this would seem to be a pre-requisite for implementation of Article 3 of the Regulation.

2.6. To the detriment of legal certainty and the length of proceedings, the Regulation disregards the need to establish a definite, regulatory time-frame for all stages of the proceedings regarding the debarment or prescription of instruments. In view of the sensitivity of the subject matter, the Committee hopes such a time-frame will be written into the Regulation wherever possible, and that all the responsible bodies will be made accountable.

2.7. The need to bring provisional and protective fall-back provisions (Article 12) into the equation for the purposes of personal protection is understandable. However, this appears to give too much leeway for the application of national law, as it surreptitiously raises related issues that are not covered by the Regulation. The Committee would recommend a more precise, restrictive wording, so as to prevent the Regulation from being abused or called into question. At all events, it is necessary to safeguard the minor's right to be heard in cases where urgent provisions are required regarding parental responsibility.

2.8. Nor will it have escaped the Commission that in the Member States partnerships are not always formalised by marriage.

The Committee would ask the Commission to consider seriously what measures are needed to ensure that, in the event that these partnerships end and decisions are taken as to responsibility for the children of such families, these decisions are automatically recognised and can be enforced. The difference in treatment which will now arise because this proposal applies only to marriages requires attention in the interests of all our children.

3. Specific comments

3.1. The Committee feels that, in order to make for ease of comprehension and implementation, some changes are needed to the text of the proposal. In view of the technical nature of the Regulation, these should also be made in the form of amendments.

3.2. Article 10(1)

For a more precise wording, this Article should include more accurate legal terminology, as follows:

"Where a respondent does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it can be shown that the respondent has not received the document instituting the proceedings or an equivalent document, or that notice to appear was not served within the time-frame established by law to allow him to arrange his defence."

3.3. Article 12

The expression "in that State" is vague. Consequently, a more precise wording should be found in order to identify exactly who is covered by this provision.

3.4. Article 15(1)(b)

Replace "unequivocally" with "in its entirety".

3.5. Article 23

In order to speed up the proceedings and provide legal certainty, a definite, reasonable time-frame should replace the phrase "without delay".

3.6. Article 24

In order to provide a final deadline for contesting the decision, the Article should be reworded as follows:

"The appropriate officer of the court shall notify the applicant of the decision given on application within a period of..., in accordance with the procedure laid down by the Member State in which enforcement is sought, and the person against whom enforcement is sought shall be notified within a period of..."

3.7. Article 25(2)

In order to avoid any implication that there may - theoretically - be other reasons why the appeal deadline may be extended, either the last sentence should be deleted, or the previous sentence reworded as follows:

"If that person is habitually resident in a Member State other than that in which the decision authorising enforcement was given, the time for appealing shall be two months, regardless of distance, and shall run..."

Brussels, 20 October 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) The term "judgment" is used to cover a range of other, more technical and legally-correct terms, such as decree, order or decision, as explained in Article 13. The array of national systems in this area currently makes it difficult to use more specific terminology, such as "provision".

(2) The plan commits the Commission to drafting proposals to complete the legislative framework for marriage and child custody, and more generally, for the civil private law provisions governing matrimonial property rights.