Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters {SEC(2006) 949} {SEC(2006) 950}
Date: 2006-07-17
Institutions: European Commission
Subjects: judicial cooperation in criminal matters in the EU, jurisdiction, matrimonial law, parental responsibility

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.7.2006 
COM(2006) 399 final 

2006/0135 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules 
concerning applicable law in matrimonial matters 

(presented by the Commission)  

{SEC(2006) 949} 
{SEC(2006) 950} 

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EXPLANATORY MEMORANDUM 

1)  GROUNDS FOR AND OBJECTIVES OF THE PROPOSAL 

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The  Treaty  of  Amsterdam  sets  out  the  objective  of  progressively  establishing  a 
common area of freedom, security and justice, amongst others by adopting measures in 
the field of judicial cooperation in civil matters. Pursuant to Article 65 of the Treaty, 
the Community shall adopt measures in the field of judicial cooperation in civil matters 
having  cross-border  implications  insofar  as  they  are  necessary  for  the  proper 
functioning  of  the  internal  market.  Article  65  (b)  specifically  refers  to  measures 
"promoting the compatibility of the rules applicable in the Member States concerning 
the conflict of laws and of jurisdiction". 

The  harmonisation  of  conflict-of-law  rules  facilitates  the  mutual  recognition  of 
judgments.  The  fact  that  courts  of  the  Member  States  apply  the  same  conflict-of-law 
rules to determine the law applicable to a given situation reinforces the mutual trust in 
judicial decisions given in other Member States.1 

The  European  Council  has  invoked  the  question  of  applicable  law  to  divorce  on  two 
occasions.  The  European  Council  in  Vienna  requested  in  1998  that  the  possibility  of 
drawing  up  a  legal  instrument  on  the  law  applicable  to  divorce  be  considered  within 
five  years  of  the  entry  into  force  of  the  Treaty  of  Amsterdam.2  More  recently,  the 
European Council called upon the Commission in November 2004 to present a Green 
Paper on the conflict-of-law rules in matters relating to divorce in 2005.3  

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General context 

The growing mobility of citizens within the European Union has led to an increasing 
number of international couples, i.e. spouses of different nationalities, spouses who live 
in different Member States or who live in a Member State in which one or both of them 
are not  nationals.  In  view of the high divorce rate in the European  Union,  applicable 
law  and  jurisdiction  in  matrimonial  matters  concern  a  significant  number  of  citizens 
each  year.  Section  3  of  the  attached  Impact  Assessment  contains  statistics  on  the 
number of international divorces and marriages within the European Union. 

Existing provisions in the area of the proposal 

There are currently no Community rules in the field of applicable law in matrimonial 
matters.  The  first  Community  instrument  adopted  in  the  area  of  family  law,  Council 
Regulation  (EC)  No  1347/20004,  set  out  rules  on  jurisdiction,  recognition  and 
enforcement  of  judgments  in  matrimonial  matters  as  well  as  judgments  on  parental 
responsibility  for  children  of  both  spouses  given  in  the  context  of  a  matrimonial 

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The Programme of measures to implement the principle of mutual recognition of decisions in civil and 
commercial matters, adopted on 30.11.2000, OJ C 12, 15.1.2000, p. 1.  
The Vienna Action Plan, adopted by the European Council 3 December 1998, OJ C19, 23.01.1999, p.1. 
The Hague Programme: strengthening freedom, security and justice in the European Union, adopted by 
the European Council 4-5 November 2004. 
Council  Regulation  (EC)  1347/2000  of  29  May  2000  on  jurisdiction  and  the  recognition  and 
enforcement of judgments in matrimonial matters and matters of parental responsibility for children of 
both spouses, OJ L 160, 30.06.2000, p. 19. 

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proceeding. It did not, however, include rules on applicable law.  

The entry into force of Council Regulation (EC) No  2201/20035,  which  repealed and 
replaced  Council  Regulation  (EC)  No  1347/2001  as  of  1  March  2005,  did  not  entail 
any change in this respect. The question of applicable law was not invoked during the 
negotiations of this Regulation, which took over virtually unchanged the provisions on 
matrimonial matters from Council Regulation (EC) 1347/2000. 

Council  Regulation  (EC)  No  2201/2003  allows  spouses  to  choose  between  several 
alternative  grounds  of  jurisdiction.  Once  a  matrimonial  proceeding  is  brought  before 
the  courts  of  a  Member  State,  the  applicable  law  is  determined  on  the  basis  of  the 
national conflict-of-law rules of that State, which are based on very different criteria. 

The majority of Member States determine the applicable law on the basis of a scale of 
connecting  factors  that  seek  to  ensure  that  the  proceeding  is  governed  by  the  legal 
order  with  which  it  has  the  closest  connection.  Other  Member  States  apply 
systematically their domestic laws ("lex fori") to matrimonial proceedings. 

Objectives of the Proposal 

The  overall  objective  of  this  Proposal  is  to  provide  a  clear  and  comprehensive  legal 
framework  in  matrimonial  matters  in  the  European  Union  and  ensure  adequate 
solutions to the citizens in terms of legal certainty, predictability, flexibility and access 
to court.  

The  current  situation  may  give  rise  to  a  number  of  problems  in  matrimonial 
proceedings  of  an  international  nature.  The  fact  that  national  laws  are  very  different 
both  with  regard  to  the  substantive  law  and  the  conflict-of-law  rules  leads  to  legal 
uncertainty. The great differences between and complexity of the national conflict-of-
law  rules  make  it  very  difficult  for  international  couples  to  predict  which  law  will 
apply  to  their  matrimonial  proceeding.  The  large  majority  of  Member  States  do  not 
provide  any  possibility  for  the  spouses  to  choose  applicable  law  in  matrimonial 
proceedings. This may lead to the application of a law with which the spouses are only 
tenuously  connected  and  to  a  result  that  does  not  correspond  to  the  legitimate 
expectations of the citizens. In addition, the current rules may induce a spouse to "rush 
to  court",  i.e.  to  seise  a  court  before  the  other  spouse  has  done  so  to  ensure  that  the 
proceeding  is  governed  by  a  particular  law  in  order  to  safeguard  his  or  her  interests. 
Finally, the current rules do not guarantee sufficient access to court.  

The  Proposal  amends  Council  Regulation  (EC)  No  2201/2003  as  regards  jurisdiction 
and applicable law in matrimonial matters to attain the following objectives:  

•  Strengthening legal certainty and predictability  

The  Proposal  introduces  harmonised  conflict-of-law  rules  in  matters  of  divorce  and 
legal separation to enable spouses to easily predict which law that will apply to their 
matrimonial proceeding. The proposed rule is based in the first place on the choice of 

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Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the 
recognition and enforcement in matrimonial matters and the matters of parental responsibility, repealing 
Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, p. 1. 

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the  spouses.  The  choice  is  confined  to  laws  with  which  the  marriage  has  a  close 
connection to avoid the application of "exotic" laws with which the spouses have little 
or  no  connection.  In  the  absence  of  choice,  the  applicable  law  is  determined  on  the 
basis  of  a  scale  of  connecting  factors  which  will  ensure  that  the  matrimonial 
proceeding  is  governed  by  a  legal  order  with  which  the  marriage  has  a  close 
connection. This will greatly enhance legal certainty and predictability for the spouses 
concerned as well as for practitioners. 

•  Increasing flexibility by introducing limited party autonomy 

There is currently very limited place for party autonomy in matrimonial matters. The 
national conflict-of-law rules foresee in principle only one solution in a given situation, 
e.g.  the  application  of  the  law  of  the  common  nationality  of  the  spouses  or  the 
application  of  the  law  of  the  forum.  The  proposal  renders  the  legal  framework  more 
flexible by introducing a limited possibility for the spouses to choose (a) applicable law 
and (b) the competent court in proceedings concerning divorce and legal separation. To 
allow spouses to come to an agreement on these matters could be particularly useful in 
cases  of  divorce  by  mutual  consent.  Special  safeguards  are  introduced  to  ensure  that 
the spouses are aware of the consequences of their choice. 

•  Ensuring access to court  

The  proposal  seeks  also  to  improve  access  to  court  in  matrimonial  proceedings.  The 
possibility to choose the competent court in proceedings relating to divorce and legal 
separation ("prorogation") will enhance access to court for spouses who are of different 
nationalities. The rule on prorogation applies regardless of whether the couple lives in 
a Member State or in a third State. In addition, the proposal specifically addresses the 
need to ensure access to court for spouses of different nationalities who live in a third 
State. The proposal introduces a uniform and exhaustive rule on residual jurisdiction in 
order to enhance legal certainty and ensure access to court in matrimonial matters for 
spouses who live in a third State but would like to bring proceedings in a Member State 
with which they have a close connection.  

•  Preventing “rush to court” by one spouse 

Finally, the Proposal addresses the problem of “rush to court” by one spouse, i.e. where 
one spouse applies for divorce before the other spouse has done so to ensure that the 
proceeding is governed by a law to safeguard his or her own interests. This may lead to 
the  application  of  a  law  with  which  the  defendant  does  not  feel  closely  connected  or 
which  fails  to  take  into  account  his  or  her  interests.  It  further  renders  reconciliation 
efforts  difficult  and  leaves  little  time  for  mediation.  The  introduction  of  harmonised 
conflict-of-law rules are likely to greatly reduce the risk of "rush to court", since any 
court  seised  within  the  Community  would  apply  the  law  designated  on  the  basis  of 
common rules. 

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•  Consistency with the other policies and objectives of the Union 

The Proposal respects the fundamental rights and observes the principles recognised in 
particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union  as  general 

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principles of Community law. In particular, it seeks to ensure full respect for the right 
to a fair trial as recognised in Article 47 of the Charter.  

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

The Commission presented a Green Paper on applicable law and jurisdiction matters in 
divorce  matters  on  14  March  2005.6  The  Green  Paper  identified  a  number  of 
shortcomings  under  the  current  situation  and  identified  different  possible  policy 
options to address the problems. The options included status quo, harmonisation of the 
conflict-of-law  rules,  introducing  a  limited  possibility  for  the  spouses  to  choose  the 
applicable  law,  revising  the  grounds  of  jurisdiction  listed  in  Article  3  of  Council 
Regulation (EC) No 2201/2003, revising Article 7 on residual jurisdiction of Council 
Regulation  (EC)  No  2201/2003,  introducing  a  limited  possibility  for  the  spouses  to 
choose  the  competent  court,introducing  a  limited  possibility  to  transfer  a  case  and 
finally a combination of the different solutions.  

The  Commission  received  approximately  65  submissions  in  response  to  the  Green 
Paper.7  

In its opinion of 28 September 2005 on the Green Paper, the European Economic and 
Social Committee welcomed the initiative taken by the Commission.  

The Commission organised a public hearing on 6 December 2005. An expert meeting 
was subsequently held on 14 March 2006. The discussions took place on the basis of a 
discussion paper drawn up by the services of the Commission.  

The  majority  of  the  responses  acknowledged  the  need  to  enhance  legal  certainty  and 
predictability,  to  introduce  a  limited  party  autonomy  and  to  prevent  "rush  to  court". 
Certain stakeholders expressed concerns that the harmonisation of conflict-of-law rules 
would oblige courts to apply foreign law and that this may lead to delays and additional 
costs in matrimonial proceedings.  

The consultation with interested parties has been taken into account in the preparation 
of this Proposal. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

The  Commission  has  undertaken  an  impact  assessment  which  is  attached  to  the 
proposal.  The  Impact  Assessment  envisages the  following  options: (i)  status  quo,  (ii) 

COM (2005) 82 final 
The responses are published at the following address:  
http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_public_en.htm 

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increased  cooperation  between  Member  States;  (iii)  harmonisation  of  the  conflict-of-
law rules including a limited possibility for spouses to choose the applicable law; (iv) 
revision of the rule on general jurisdiction of Council Regulation (EC) No 2201/2003, 
(v) introduction of a limited possibility for spouses to choose competent court and (vi) 
revision of the rule on residual jurisdiction of Council Regulation (EC) No 2201/2003. 

It  results  from  the  impact  assessment  that  a  combination  of  Community  actions  is 
necessary  to  tackle  the  various  problems.  The  report  advocates  a  revision  of  Council 
Regulation (EC) No 2201/2003 including a harmonisation of conflict-of-law rules with 
a  limited  possibility  for  the  spouses  to  choose  the  applicable  law,  the  introduction  of 
prorogation and a revision of the rule of residual jurisdiction in Article 7.  

The Commission carried out an impact assessment listed in the Work Programme, 
whose report is accessible on 
http://europa.eu.int/comm/justice_home/news/consulting_public/news_consulting_publ
ic_en.htm. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

•  Legal basis 

The legal basis for this proposal is Article 61 (c) of the Treaty conferring powers on the 
Community  to  adopt  measures  in  the  field  of  judicial  cooperation  in  civil  matters  as 
provided for in Article 65.  

Article  65  confers  legislative  powers  on  the  Community  with  regard  to  judicial 
cooperation in civil matters having cross-border implications in so far as necessary for 
the  proper  functioning  of  the  internal  market.  Article  65  (b)  explicitly  mentions 
measures promoting the compatibility of conflict-of-law rules and jurisdiction rules.  

The proposal concerns provisions of jurisdiction and applicable law which only come 
into play in international situations, e.g. where spouses live in different Member States 
or  are  of  different  nationalities.  The  cross-border  requirement  in  Article  65  is 
consequently fulfilled. 

The Community institutions have a certain margin of discretion in determining whether 
a  measure  is  necessary  for  the  proper  functioning of  the  internal market. The  present 
proposal facilitates the proper functioning of the internal market since it will eliminate 
any obstacles to the free movement of persons who are currently faced with problems 
due  to  the  remaining  differences  between  the  national  laws  with  regard  to  applicable 
law and jurisdiction in matrimonial matters. 

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•  Subsidiarity principle 

The  objectives  of  the  Proposal  cannot  be  accomplished  by  the  Member  States  but 
require  action  at  Community  level  in  the  form  of  common  rules  on  jurisdiction  and 
applicable  law.  Jurisdiction rules as well as conflict-of-law  rules must be  identical to 
ensure  the  objective  of  legal  certainty  and  predictability  for  the  citizens.  Unilateral 
action  by  Member  States  would  therefore  run  counter  this  objective.  There  is  no 
international convention in force between Member States on the question of applicable 
law  in  matrimonial  matters.  The  public  consultation  and  the  impact  assessment  have 
demonstrated that the scale of the problems addressed in this proposal is significant and 
that it concerns thousands of citizens each year. In light of the nature and the scale of 
the problem, the objectives can only be achieved at Community level. 

•  Proportionality principle 

The Proposal complies with the principle of proportionality in that it is strictly limited 
to what is necessary to achieve its objectives. The proposed rules on applicable law and 
prorogation  are  limited  to  divorce  and  legal  separation  and  do  not  apply  to  marriage 
annulment.  

It  is  expected  that  the  present  proposal  will  not  entail  any  additional  financial  or 
administrative  burdens  on  citizens  and  only  a  very  limited  additional  burden  on 
national authorities.  

•  Choice of instrument 

With  regard  to  the  type  of  legislative  instrument,  the  nature  and  the  objective  of  the 
proposal require the form of Regulation. The need for legal certainty and predictability 
calls for clear and uniform rules. The proposed rules on jurisdiction and applicable law 
are  detailed  and  precise  and  require  no  implementation  into  national  law.  To  leave 
Member  States  any  margin  of  discretion  for  the  implementation  of  these  rules  would 
endanger the objectives of legal certainty and predictability.  

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5)  ADDITIONAL INFORMATION 

•  Simplification 

The proposal provides a simplification of administrative procedures for citizens as well 
as for practitioners.  

In particular the harmonisation of conflict-of-law rules would considerably simplify the 
situation  for  private  parties  and  practitioners,  who  will  be  able  to  determine  the 
applicable  law  on  the  basis  of  one  single  set  of  rules  which  will  replace  the  existing 

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twenty-four national conflict-of-law rules. 

The  proposal  is  included  in  the  Commission's  rolling  programme  for  up-date  and 
simplification of the acquis communautaire. 

•  Detailed explanation of the proposal 

Chapter II - Jurisdiction 

Article 3a 

This provision introduces a limited possibility for the spouses to designate by common 
agreement the competent court ("prorogation") in a proceeding relating to divorce and 
legal  separation.  It  corresponds  to  Article  12  of  Council  Regulation  No  2201/2003, 
which  allows  the  parties  to  agree  on  the  competent  court  in  matters  of  parental 
responsibility under certain conditions.  

This  enhanced  party  autonomy  will  improve  legal  certainty  and  predictability  for  the 
spouses. The current jurisdiction rules do not allow spouses to apply for divorce in a 
Member  State  of  which  only  one  of  them  is  a  national  in  the  absence  of  another 
connecting factor. The new rule will in particular improve access to court for spouses 
of different nationalities by enabling them to designate by common agreement a court 
or  the  courts  of  a  Member  State  of  which  one  of  them  is  a  national.  This  possibility 
applies to spouses living  in  a  Member State as well as spouses  living  in  third States. 
Spouses who designate a competent court may also avail themselves of the possibility 
to choose the applicable law pursuant to Article 20a. 

Certain formal requirements need to be respected to ensure that both spouses are aware 
of the consequences of their choice.  

The possibility to choose the competent court does not apply to proceedings relating to 
marriage annulment where party autonomy is considered inappropriate.  

Articles 4 and 5 are amended to take account of the new rule on prorogation.  

Article  6  is  deleted.  The  public  consultation  revealed  that  this  provision  may  cause 
confusion.  It  is  also  superfluous  since  Articles  3,  4  and  5  describe  in  which 
circumstances a court has exclusive competence where a spouse is habitually resident 
in the territory of a Member State or is a national of a Member State, or in the case of 
the United Kingdom and Ireland, has his or her "domicile" in the territory of one of the 
latter States. 

Article 7 

Article 7 currently refers to the national rules on international jurisdiction in situations 
where the spouses are not habitually resident in the territory of a Member State and do 
not  have  common  nationality.  However,  the  national  rules  are  based  on  different 
criteria and do not always effectively ensure access to court for spouses although they 
may  have  a  close  connection  with  the  Member  State  in  question.  This  may  lead  to 
situations  where  no  jurisdiction  in  the  EU  or  in  a  third  State  has  jurisdiction  to  deal 
with  an  application  for  divorce,  legal  separation  or  marriage  annulment.  It  may  also 

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lead to practical difficulties to have the divorce recognised in a Member State since a 
decision issued in a third State is not recognised in a Member State pursuant to Council 
Regulation  (EC)  No  2201/2003,  but  only  pursuant  to  national  rules  or  applicable 
international treaties.  

The Proposal introduces a uniform and exhaustive rule on residual jurisdiction which 
replaces the national rules on residual jurisdiction and which ensures access to court for 
spouses who live in a third States but retain strong links with a certain Member State of 
which they are nationals or in which they have resided for a certain period. The scope 
of  this  rule  corresponds  to  the  general  rule  of  jurisdiction  in  Article  3  and  applies  to 
divorce, legal separation and marriage annulment. 

Article 12  

Article 12 is amended to ensure that a divorce court chosen by the spouses pursuant to 
Article 3a has jurisdiction also in matters of parental responsibility connected with the 
divorce application provided the conditions set out in Article 12 are met, in particular 
that the jurisdiction is in the best interests of the child. 

Chapter IIa Applicable law in matters of divorce and legal separation 

The Commission proposes to introduce harmonised conflict-of-law rules in matters of 
divorce and legal separation, based in the first place on the choice of the spouses. The 
choice is confined to laws with which the spouses have a close connection by virtue of 
their last common habitual residence if one of them still resides there, the nationality of 
one of the spouses, the law of the State of their previous habitual residence or the law 
of the forum.  

The majority of the respondents to the Green Paper considered that common conflict-
of-law  rules  should apply to legal separation and divorce,  since legal separation  is in 
many cases the necessary precursor to divorce. The Member States that recognise legal 
separation  apply  the  same  conflict-of-law  rules  to  divorce  and  legal  separation.  By 
contrast,  most  stakeholders  were  not  in  favour  of  extending  these  rules  to  marriage 
annulment,  which  is  closely  linked  to  the  validity  of  the  marriage  and  generally 
governed  by  the  law  of  the  State  where  the  marriage  was  celebrated  ("lex  loci 
celebrationis") or the law of the nationality of the spouses ("lex patriae").  

Article 20a 

The  vast  majority  of  the  national  conflict-of-law  rules  only  foresee  one  solution  in  a 
given  situation.  The  proposal  seeks  to  enhance  the  flexibility  of  the  spouses  by 
allowing them to choose the law applicable to divorce and legal separation. The laws 
available are confined to the laws with which the spouses have a close connection. The 
rule  includes  certain  procedural  requirements  to  ensure  that  the  spouses  are  aware  of 
the consequences of their choice.  

Article 20b 

In the absence of choice by the parties, the applicable law would be determined on the 
basis of a scale of connecting factors, based in the first place on the habitual residence 
of  the  spouses.  This  uniform  rule  will  ensure  legal  certainty  and  predictability.  The 

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introduction of harmonised conflict-of-law rules is likely to greatly reduce the risk of 
"rush  to  court"  since  any  court  seised  within  the  Community  would  apply  the  law 
designated on the basis of common rules.  

The fact that the rule is based in the first place on the habitual residence of the spouses 
and, failing that, on their last habitual residence if one of them still resides there will 
result  in  the  application  of  the  law  of  the  forum  in  the  vast  majority  of  cases.  The 
problems relating to the application of foreign law will therefore be scarce. 

Article 20c 

Although this is not explicitly stated in the text, the proposed Regulation is meant to be 
of universal application, meaning that the conflict-of-law rule can designate the law of 
a Member State of the European Union or the law of a third State.  

Where the law of another Member State is designated, the European Judicial Network 
in civil and commercial matters can play a role in assisting the courts on the contents of 
foreign law.  

Article 20d 

To allow renvoi would jeopardise the objective of legal certainty. The designation of a 
law  under  the  uniform  conflict-of-law  rules  consequently  means  designating  the 
substantive rules of that law and not its rule of private international law. 

Article 20e  

The mechanism of the public policy exception allows the court to disregard the rules of 
the  foreign  law  designated  by  the  conflict-of-law  rule  where  the  application  of  the 
foreign law in a given case would be contrary to the public policy of the forum. The 
word "manifestly" incompatible means that the use of the public policy exception must 
be exceptional.  

Position of the United Kingdom, Ireland and Denmark 

The United Kingdom and Ireland do not participate in co-operation in matters covered 
by Title IV of the Treaty unless they give notice of their wish to take part in accordance 
with  Article  3  of  the  Protocol  on  the  position  of  the  United  Kingdom  and  Ireland 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  establishing  the  European 
Community.  

Denmark is not participating in the adoption of this Regulation and is not bound by it 
nor  subject  to  its  application  by  virtue  of  Articles  1  and  2  of  the  Protocol  on  the 
position  of  Denmark  annexed  to  the  Treaty  on  European  Union  and  the  Treaty 
establishing the European Community.  

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2006/0135 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules 
concerning applicable law in matrimonial matters 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 61(c) and Article 67(1) thereof, 

Having regard to the proposal from the Commission8, 

Having regard to the opinion of the European Parliament9, 

Having regard to the opinion of the European Economic and Social Committee10, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  European  Union  has  set  itself  the  objective  of  maintaining  and  developing  the 
European Union as an area of freedom, security and justice in which the movement of 
persons is ensured. For the gradual establishment of such an area, the Community is to 
adopt,  among  others,  the  measures  relating  to  judicial  cooperation  in  civil  matters 
needed for the proper functioning of the internal market. 

There are currently no Community rules in the field of applicable law in matrimonial 
matters. Council Regulation (EC) No 2201/2003 of 27 November 2003 sets out rules 
on jurisdiction, recognition and enforcement of judgments in matrimonial matters and 
matters of parental responsibility, but does not include rules on applicable law. 

The  European  Council  held  in  Vienna  on  11  and  12  December  1998  invited  the 
Commission  to  consider  the  possibility  of  drawing  up  a  legal  instrument  on  the  law 
applicable  to  divorce.  In  November  2004,  the  European  Council  invited  the 
Commission to present a Green Paper on conflict-of-law rules in divorce matters. 

In  line  with  its  political  mandate,  the  Commission  presented  a  Green  Paper  on 
applicable law and jurisdiction in divorce matters on 14 March 2005. The Green Paper 
launched  a  wide  public  consultation  on  possible  solutions  to  the  problems  that  may 
arise under the current situation.  

8 
9 
10 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(5) 

This  Regulation  should  provide  a  clear  and  comprehensive  legal  framework  in 
matrimonial  matters  in  the  European  Union  and  ensure  adequate  solutions  to  the 
citizens in terms of legal certainty, predictability, flexibility and access to court.  

(6)  With  the  aim  of  enhancing  legal  certainty,  predictability  and  flexibility,  this 
Regulation  should  introduce  the  possibility  for  spouses  to  agree  upon  the  competent 
court in proceedings for divorce and legal separation. It also should give the parties a 
certain possibility to choose the law applicable to divorce and legal separation. Such 
possibility  should  not  extend  to  marriage  annulment,  which  is  closely  linked  to  the 
conditions  for  the  validity  of  the  marriage,  and  for  which  parties’  autonomy  is 
inappropriate.  

(7) 

(8) 

(9) 

In  the  absence  of  choice  of  applicable  law,  this  Regulation  should  introduce 
harmonised conflict-of-law rules based on a scale of connecting factors to ensure legal 
certainty  and  predictability  and  to  prevent  "rush  to  court".  Such  connecting  factors 
should be chosen as to ensure that proceedings relating to divorce or legal separation 
be governed by a law with which the marriage has a close connection.  

Considerations  of  public  interest  should  justify  the  possibility  in  exceptional 
circumstances to disregard the application of the foreign law in a given case where this 
would be manifestly contrary to the public policy of the forum. 

The residual rule on jurisdiction should be revised to enhance predictability and access 
to courts for spouses of different nationalities living in a third State. To this end, the 
Regulation should set out a harmonised rule on residual jurisdiction to enable couples 
of  different  nationalities  to  seise  a  court  of  a  Member  State  with  which  they  have  a 
close connection by virtue of their nationality or their last common habitual residence.  

(10)  Article  12  of  Council  Regulation  (EC)  No  2201/2003  should  be  amended  to  ensure 
that a divorce court designated pursuant to Article 3a has jurisdiction also in matters of 
parental responsibility connected with the divorce application provided the conditions 
set out in Article 12 of the same Regulation are met, in particular that the jurisdiction 
is in the best interests of the child.  

(11)  Regulation (EC) No 2201/2003 should therefore be amended accordingly.  

(12)  Since  the  objectives  of  the  action  to  be  taken,  namely  to  enhance  legal  certainty, 
flexibility  and  access  to  court  in  international  matrimonial  proceedings,  cannot  be 
sufficiently achieved by the Member States and can therefore, by reason of scale, be 
better  achieved  at  Community  level,  the  Community  may  adopt  measures,  in 
accordance with the principles of subsidiarity as set out in Article 5 of the Treaty. In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary to attain these objectives. 

(13)  This Regulation respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union as general 
principles of Community law. In particular, it seeks to ensure full respect for the right 
to a fair trial as recognised in Article 47 of the Charter.  

(14) 

[The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the 
position of the United Kingdom and Ireland annexed to the Treaty on European Union 

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and the Treaty establishing the European Community, have given notice of their wish 
to take part in the adoption and application of this Regulation.]  

(15)  Denmark,  in  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of 
Denmark  annexed  to  the  Treaty  on  European  Union  and  the  Treaty  establishing  the 
European  Community,  is  not  participating  in  the  adoption  of  this  Regulation,  and  is 
therefore not bound by it nor subject to its application. 

HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 2201/2003 is amended as follows: 

(1) 

the title is replaced by the following: 

“Council Regulation (EC) N° 2201/2003 concerning jurisdiction and the recognition 
and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility as well as applicable law in matrimonial matters ” 

(2) 

the following Article 3a is inserted: 

“Article 3a 

Choice of court by the parties in proceedings relating to divorce and legal separation 

1. 

The spouses may agree that a court or the courts of a Member State are to have 
jurisdiction  in  a  proceeding  between  them  relating  to  divorce  or  legal 
separation provided they have a substantial connection with that Member State 
by virtue of the fact that 

(a) 

any of the grounds of jurisdiction listed in Article 3 applies, or  

(b) 

(c) 

it  is  the  place  of  the  spouses’  last  common  habitual  residence  for  a 
minimum period of three years, or  

one of the spouses is a national of that Member State or, in the case of 
the  United  Kingdom  and  Ireland,  has  his  or  her  “domicile”  in  the 
territory of one of the latter Member States.  

2.  An agreement conferring jurisdiction shall be expressed in writing and signed 

by both spouses at the latest at the time the court is seised."  

(3) 

In Articles 4 and 5, the terms “Article 3” are replaced by the terms “Articles 3 and 
3a”.”. 

(4) 

Article 6 is deleted; 

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(5) 

Article 7 is replaced by the following: 

"Article 7 

Residual jurisdiction 

(6) 

(7) 

Where none of the spouses is habitually resident in the territory of a Member State 
and  do  not  have  a  common  nationality  of  a  Member  State,  or,  in  the  case  of  the 
United Kingdom and Ireland do not have their “domicile” within the territory of one 
of the latter Member States, the courts of a Member State are competent by virtue of 
the fact that: 

(a) 

(b) 

the spouses had their common previous habitual residence in the 

territory of that Member State for at least three years; or 

one of the spouses has the nationality of that Member State, or, in the 
case of United Kingdom and Ireland, has his or her “domicile” in the 
territory of one of the latter Member States.” 

In Article 12 (1), the terms “Article 3” are replaced by the terms “Articles 3 and 3a”. 

The following Chapter IIa is inserted: 

“CHAPTER IIa 

Applicable law in matters of divorce and legal separation 

Article 20a 

Choice of law by the parties 

1. 

The  spouses  may  agree  to  designate  the  law  applicable  to  divorce  and  legal 
separation. The spouses may agree to designate one of the following laws: 

(a) 

(b) 

(c) 

the  law  of  the  State  of  the  last  common  habitual  residence  of  the 
spouses insofar as one of them still resides there;  

the law of the State of the nationality of either spouse, or, in the case 
of United Kingdom and Ireland, the “domicile” of either spouse; 

the  law  of  the  State  where  the  spouses  have  resided  for  at  least  five 
years; 

(d) 

the law of the Member State in which the application is lodged. 

2.  An agreement designating the applicable law shall be expressed in writing and 

be signed by both spouses at the latest at the time the court is seised. 

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Article 20b 

Applicable law in the absence of choice by the parties 

In the absence of choice pursuant to Article 20a, divorce and legal separation shall be 
subject to the law of the State:  

(a) 

(b) 

(c) 

where  the  spouses  have  their  common  habitual  residence,  or  failing 
that, 

where the spouse had their last common habitual residence insofar as 
one of them still resides there, or failing that,  

of  which  both  spouses  are  nationals,  or,  in  the  case  of  United 
Kingdom and Ireland, both have their “domicile”, or failing that, 

(d) 

where the application is lodged. 

Article 20c 

Application of foreign law  

Where a law of another Member State is applicable, the court may make use of the 
European  Judicial  Network  in  civil  and  commercial  matters  to  be  informed  of  its 
contents.  

Article 20d 

Exclusion of renvoi 

The application of a law designated under this Regulation means the application of 
the rules of that law other than its rules of private international law 

Article 20e 

Public policy  

The  application  of  a  provision  of  the  law  designated  by  this  Regulation  may  be 
refused only if such application is manifestly incompatible with the public policy of 
the forum."  

Article 2  
Entry into force 

This Regulation shall enter into force on twentieth day following that of its publication in the 
Official Journal of the European Union. 

It shall apply from 1 March 2008. 

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This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaty establishing the European Community. 

Done at Brussels,  

For the Council 
The President 
[…] 

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