Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters COM(2006) 399 final
Date: 2006-12-13
Institutions: European Economic and Social Committee
Subjects: judicial cooperation in criminal matters in the EU, jurisdiction, matrimonial law, parental responsibility

30.12.2006

EN

Official Journal of the European Union

C 325/71

Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation
amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning
applicable law in matrimonial matters

COM(2006) 399 final

(2006/C 325/17)

On 20 September 2006 the Council decided, in accordance with Article 262 of the Treaty establishing the
European Community, to consult the European Economic and Social Committee on the abovementioned
proposal.

The Section for Employment, Social Affairs and Citizenship, which was asked to prepare the Committee's
work on the matter, adopted its opinion on 7 November 2006 (rapporteur working alone: Mr Retureau).

At its 431st plenary session of 13 and 14 December 2006 (meeting of 13 December), the European
Economic and Social Committee adopted the following opinion by 108 votes to two, with one abstention.

1. Summary of the opinion

concerning legal cooperation in civil matters, as referred to in
Article 65.

1.1
The Committee, consulted on the first initiative, basically
approves the extension, through amendments, of the questions
of jurisdiction and law applicable to Regulation No 2201/2003,
thereby supplementing on these points a regulation which dealt
with the recognition of
legal decisions on matrimonial and
childcare matters. It has already expressed its views — at the
time of the Green Paper on Divorce — on legal jurisdiction and
to this highly detailed
applicable
opinion (1).

and would refer

law,

However, it wonders whether it is advisable to deal sepa-
1.2
rately with the issue of distribution of
jointly-held assets
(buildings, furniture and other property rights), by widening the
scope rationae personae of this distribution to unmarried couples
(which may also have children in common).

1.3
Perhaps it would have been more logical to deal, on the
one hand, with all the consequences of the dissolution of a
marriage and of
the custody of children in common in a
complete Regulation No 2201/2003 and, on the other hand,
with all the consequences of the separation of an unmarried
couple living under a contractual or de facto arrangement in a
new regulation. That would doubtless have improved clarity and
understanding of applicable law and made it easier to accept the
legal decisions which often regulate all
the conditions and
consequences of a divorce or separation in a single, final judg-
ment.

2. Commission proposals

Two initiatives by the Commission concerning applicable
2.1
law in matrimonial matters have just been submitted to the
Council; one concerns the separation of married couples and
proposes amendments to Regulation No 2201/2003, which
came into force on 1 January 2005, while the other concerns
the distribution of jointly-held assets, whether these be from the
liquidation of a marriage settlement or a separation either of
couples governed by a contract other than marriage or of de
facto couples.

The legal basis of the proposal

2.2
is Article 61(c) of the
Treaty, which gives the Community powers to adopt measures

(1) EESC opinion of 29.9.2005 on the Green Paper on applicable law and
jurisdiction in divorce matters, rapporteur: Mr Retureau (OJ C 24 of
31.1.2006).

2.3
Speaking about these two initiatives, Commissioner Frat-
tini declared: ‘These initiatives will simplify life for couples in the EU
…. They will
increase legal certainty and enable couples to know
which law will apply to their matrimonial property regime and their
divorce. The aim is not to harmonise the national
laws on divorce,
which are very diverse, but to ensure legal certainty, flexibility and
access to court’.

2.4
Because of the high divorce rate in the European Union,
a considerable number of citizens each year are concerned by
the issue of applicable law and jurisdiction in matrimonial
matters.

The

2.5
entry into force of Council Regulation (EC)
No 2201/2003, which repealed and replaced Council Regulation
(EC) No 1347/2000 from 1 March 2005, did not, however,
include rules on applicable law. Council Regulation (EC)
No 2201/2003 allows spouses to choose between several alter-
native 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 systemati-
cally their domestic laws (‘lex fori’) to matrimonial proceedings.
Belgium allows spouses to choose between Belgian law and the
law governing the foreign marriage.

3. General comments

3.1
The initiative examined in this opinion concerns the law
applicable to divorce, legal separation or the annulment of an
‘international’ marriage (where couples are of different national-
ities or of the same nationality but residing in a Member State
other than their own), and to the custody of their joint minor
children. It therefore concerns issues relating to the dissolution
of the bond of marriage between spouses when an extraneous
element is present, without exceeding the scope rationae materiae
of Regulation No 2201/2003.

C 325/72

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Official Journal of the European Union

30.12.2006

The EESC recognises that the proposal will guarantee citi-
3.2
zens suitable solutions as regards legal certainty, predictability,
flexibility and access to court. It is in accordance with the legal
basis which is regularly applied to issues of civil and commercial
law.

3.3
Certain national laws do not require the spouses to be of
different sexes, unlike a majority of national legislations, but the
EESC notes that the aim of the amended regulation is not to
harmonise national laws but to determine the applicable law in
all actual cases comprising an extraneous element and to enable
the circulation of judgments without exequatur. So, even funda-
mental differences between national laws do not, in principle,
prevent the application of the amended regulation proposed by
the Commission.

3.4
The EESC has already issued an opinion on the law
applicable to divorce on the occasion of the recent divorce
Green Paper, and therefore refers primarily to this opinion to
express its views on the present proposal. It would again stress
the importance of the above-mentioned regulation for multina-
tional couples, because it clarifies and simplifies the conditions
of access to a judge and the free circulation of legal decisions in
the internal market.

The EESC would point out that the proposal admits that
3.5
two distinct situations arise depending on whether spouses
agree or disagree as regards jurisdiction and applicable law, and
that the amended regulation would grant major advantages and
greater flexibility in the first case, but apply a rather mechanical
model in the second. This differs from the situations envisaged
by the Green Paper on divorce, which proposed more flexible
solutions in the event of a disagreement between spouses. The
EESC would have liked this flexibility concept to be maintained,
although it recognises that the Commission proposal is simpler
and prevents any lengthening of procedures.

3.6
The proposal allows the extension of jurisdiction if the
plaintiffs agree on this point. It completely rules out the proce-
dure of transfer, which the EESC could accept under certain
conditions (jurisdiction of the first court petitioned to rule on
the transfer, urgency of judgment), as it said in its opinion on
the divorce Green Paper.

As regards the public policy exception,

3.7
the proposal
in exceptional cases, to refuse to recognise a
allows a judge,
foreign legal decision if it is manifestly contrary to the public
policy of the forum. However, differences could occur between
Member States, and a judgment recognised in one country may
not be recognised in another, thus preventing freedom of circu-
lation of
the legal decision and creating an inappropriate
obstacle.

Brussels, 13 December 2006.

The EESC feels that, as regards the recognition of judg-
3.8
ments that may originate from non-EU countries in particular, it
may well be worth specifying that judgments which seek to be
recognised are obliged to comply with the European Convention
for the Protection of Human Rights and Fundamental Freedoms,
and with the Charter adopted in 2000 by the Nice Council, as
well as with the principle of strict
legal equality between
spouses. Any state petitioned with a request for recognition and
noting obvious divergences from the fundamental rights of the
European Union should oppose circulation of the judgment on
the grounds of ‘exception for reasons of Community public
policy’.

3.9
In order to guarantee uniform recognition throughout
the Member States, no exception for reasons of national public
policy should be allowed against another country; only an
exception for reasons of Community public policy could be
permitted. That would avoid any feeling of arbitrary treatment
arising as regards a refusal of recognition from a given forum.

4. Specific comments

4.1
The fact that the Commission is presenting two separate
initiatives is a consequence of the difference in the scope rationae
personae of each of the proposals. The proposal on the distribu-
tion of assets concerns all couples, whether married or not.

However, one may well wonder why such a distinction
4.2
the liquidation of a marriage calls for
has been proposed;
specific solutions depending on the nature of
the rules
governing it (legal rules in the absence of a marriage contract,
or legal contractual arrangements) and of any gifts between
spouses which may be covered by specific provisions compared
with other gifts, particularly as regards inheritance.

4.3
Perhaps it would have been more logical to deal with all
the consequences, including the financial ones, of a dissolution
of a marriage and the custody of joint children in an expanded
Regulation No 2201/2003 and draw up a new regulation to
deal with all the consequences of the separation of couples who
are not married, possibly of the same sex, and who live under a
legal contractual arrangement (like the PACS in France) or a de
facto arrangement (e.g. as a concubine).

4.4
That would undoubtedly have made the applicable law
clearer and more understandable and made it easier to recognise
the legal decisions which often regulate all the conditions and
consequences of divorce or separation in a single judgment,
especially as the situation of the children of ‘non-typical’ couples
— and not just that of their assets — also has to be resolved.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS