Applicable law in matrimonial matters *European Parliament legislative resolution of 21 October 2008 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)0399 — C6-0305/2006 — 2006/0135(CNS)
Date: 2008-10-21
Institutions: Committee on Civil Liberties, Justice and Home Affairs, European Parliament
Subjects: judicial cooperation in criminal matters in the EU, jurisdiction, matrimonial law, parental responsibility








CE2010015EN.01012801.xml










21.1.2010   


EN


Official Journal of the European Union


CE 15/128





Tuesday 21 October 2008Applicable law in matrimonial matters *
P6_TA(2008)0502
European Parliament legislative resolution of 21 October 2008 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)0399 — C6-0305/2006 — 2006/0135(CNS))
2010/C 15 E/39
(Consultation procedure)

The European Parliament,
having regard to the Commission proposal to the Council (COM(2006)0399),
having regard to Article 61, point (c) and Article 67(1) of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0305/2006),
having regard to Rule 51 of its Rules of Procedure,
having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Legal Affairs (A6-0361/2008),






1.


Approves the Commission proposal as amended;










2.


Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;










3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;










4.


Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;










5.


Instructs its President to forward its position to the Council and the Commission.










TEXT PROPOSED BY THE COMMISSION


AMENDMENTS BY PARLIAMENT





Amendment 1






RECITAL 6a (new)





 










(6a)





The possibility of choosing the law applicable to divorce and to legal separation should not harm the superior interests of the child.










Amendment 2






RECITAL 6b (new)





 










(6b)






Before the competent jurisdiction and the applicable law are designated, it is important for the spouses to have access to up-to-date information concerning the essential aspects of national and Community law and of the procedures relating to divorce and legal separation. In order to safeguard such access to information of an appropriate quality, the Commission must regularly update the information contained in the Internet-based information system for the public established by means of Council Decision No 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (1)

.









Amendment 3






RECITAL 6c (new)





 










(6c)





The possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an informed choice on the part of the two spouses concerning the legal implications of the agreement concluded.










Amendment 4






RECITAL 7a (new)





 










(7a)





The term ‘habitual residence’ should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but rather to a separate concept established in Community law.










Amendment 5






RECITAL 9a (new)





 










(9a)





The informed agreement of the two spouses is a basic principle of this Regulation. Each partner in the couple should know exactly what legal and social implications follow from the choice of jurisdiction and of applicable law.










Amendment 6






ARTICLE 1, POINT 1


Title (Regulation (EC) No 2201/2003)





Council Regulation (EC) No 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
.


Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, as well as 
the law applicable to divorce and legal separation
.





Amendment 7






ARTICLE 1, POINT 1A (new)


Article 2, point 11a (new) (Regulation (EC) No 2201/2003)





 










(1a)






In Article 2, the following point shall be added
:








11a.






the term ‘habitual residence’ shall mean a person's place of ordinary abode.















Amendment 8






ARTICLE 1, POINT 2


Article 3a, paragraph 1, point (a) (Regulation (EC) No 2201/2003)











(a)




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












(a)




at the time when the agreement is concluded, the jurisdiction of that Member State is competent pursuant to
 Article 3, or









Amendment 9






ARTICLE 1, POINT 2


Article 3a, paragraph 1, point (b) (Regulation (EC) No 2201/2003)











(b)


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












(b)




at the time when the agreement is concluded,
 it is the 
Member State in which
 the spouses 
have had their
 habitual residence for a minimum period of three years, 
provided that this situation did not come to an end more than three years before the jurisdiction was seised
, or









Amendment 10






ARTICLE 1, POINT 2


Article 3a, paragraph 1, point (c) (Regulation (EC) No 2201/2003)











(c)


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.












(c)




at the time when the agreement is concluded,
 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.









Amendment 11






ARTICLE 1, POINT 2


Article 3a, paragraph 1, point ca (new) (Regulation (EC) No 2201/2003)





 










(ca)





their marriage took place in that Member State.










Amendment 12






ARTICLE 1, POINT 2


Article 3a, paragraph 2 (Regulation (EC) No 2201/2003)











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.












2.


An agreement conferring jurisdiction 
may be concluded or altered at any time, but
 at the latest at the time the court is seised. 
It shall apply to the last court level.




The agreement shall be expressed in writing, dated and signed by both spouses. If the law of the Member State in which one of the spouses has their habitual residence at the time the agreement is made provides for any additional formal requirements for such agreements, those requirements must be fulfilled. If the spouses have their habitual residence in different Member States whose respective laws provide for additional formal requirements, the agreement shall be valid if it complies with the requirements of the law of one of those Member States
.


If the agreement forms part of a marriage contract, the formal requirements of that marriage contract must be fulfilled.











Amendment 13






ARTICLE 1, POINT 3


Articles 4 and 5 (Regulation (EC) No 2201/2003)











(3)


In Articles 4 and 5, the terms ‘Article 3’ are replaced by the terms ‘Articles 3 
and
 3a’.












(3)


In Articles 4 and 5, the terms ‘Article 3’ are replaced by the terms ‘Articles 3
,
 3a 
and 7
’.









Amendment 14






ARTICLE 1, POINT 5


Article 7, point a (Regulation (EC) No 2201/2003)











(a)


the spouses had their 
common previous
 habitual residence in the territory of that Member State for at least three years; or












(a)


the spouses 
previously
 had their habitual residence in the territory of that Member State for at least three years
, provided that the end of that period does not precede the seisure of the jurisdiction by more than three years
; or









Amendment 15






ARTICLE 1, POINT 5A (new)


Article 7a (new) (Regulation (EC) No 2201/2003)





 










(5a)





The following article is inserted:


Article 7a


Forum necessitatis



Where the jurisdiction which is competent pursuant to this Regulation is located in a Member State under whose law there is no provision for divorce or the existence or the validity of the marriage in question is not recognised, jurisdiction shall be granted to:










(a)






the Member State of which one of the spouses is a national; or














(b)






the Member State in which the marriage took place.















Amendment 16






ARTICLE 1, POINT 6


Article 12, paragraph 1 (Regulation (EC) No 2201/2003)











(6)


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












(6)


In Article 12 (1), the terms ‘Article 3’ are replaced by the terms ‘Articles 3
,
 3a 
and 7
’.









Amendment 38






ARTICLE 1 — POINT 7


Article 20a — paragraph 1 — introductory part (Regulation (EC) No 2201/2003)





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:


1.   The spouses may agree to designate the law applicable to divorce and legal separation 
provided that such law is in conformity with the fundamental rights defined in the Treaties and in the Charter of Fundamental Rights of the European Union and the principle of public policy
. The spouses may agree to designate one of the following laws:





Amendment 18






ARTICLE 1, POINT 7


Article 20a, paragraph 1, point -a (new) (Regulation (EC) No 2201/2003)





 










(-a)





the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded;










Amendment 19






ARTICLE 1, POINT 7


Article 20a, paragraph 1, point a (Regulation (EC) No 2201/2003)











(a)


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












(a)


the law of the State of habitual residence of the spouses insofar as one of them still resides there 
at the time when the agreement is concluded
;









Amendment 20






ARTICLE 1, POINT 7


Article 20a, paragraph 1, point b (Regulation (EC) No 2201/2003)











(b)


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;












(b)


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 
at the time when the agreement is concluded
;









Amendment 21






ARTICLE 1, POINT 7


Article 20a, paragraph 1, point c (Regulation (EC) No 2201/2003)











(c)


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












(c)


the law of the State where the spouses have 
previously had their habitual residence
 for at least 
three
 years;









Amendments 22 and 23






ARTICLE 1, POINT 7


Article 20a, paragraph 1, point ca (new) (Regulation (EC) No 2201/2003)





 










(ca)





the law of the State in which the marriage took place;










Amendment 24






ARTICLE 1, POINT 7


Article 20a, paragraph 2 (Regulation (EC) No 2201/2003)





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.


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.


However, if the law of the Member State in which one of the spouses has his or her habitual residence at the time when the agreement is concluded stipulates additional formal requirements for such agreements, those requirements must be met. If the spouses have their habitual residence in different Member States whose respective laws stipulate additional formal requirements, the agreement shall be valid if it meets the requirements of the law of one of those Member States
.


If the agreement forms part of a marriage contract, the formal requirements of that contract must be met.







Amendment 25






ARTICLE 1, POINT 7


Article 20a, paragraph 2a (new) (Regulation (EC) No 2201/2003)





 




2a.
   
Should the law indicated pursuant to the first paragraph not recognise legal separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.







Amendment 27






ARTICLE 1, POINT 7


Article 20b, point a (Regulation (EC) No 2201/2003)











(a)


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












(a)


where the spouses have their habitual residence 
at the time when the jurisdiction is seised,
 or failing that,









Amendment 28






ARTICLE 1, POINT 7


Article 20b, point b (Regulation (EC) No 2201/2003)











(b)


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












(b)


where the spouses had their habitual residence insofar as one of them still resides there 
at the time when the jurisdiction is seised
, or failing that,









Amendment 29






ARTICLE 1, POINT 7


Article 20b, point c (Regulation (EC) No 2201/2003)











(c)


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












(c)


of which both spouses are nationals, or, in the case of the United Kingdom and Ireland, 
in which
 both 
spouses
 have their ‘domicile’
at the time at which the jurisdiction is seised
, or failing that,









Amendment 30






ARTICLE 1, POINT 7


Article 20b, subparagraph 1a (new) (Regulation (EC) No 2201/2003)





 




Should the law indicated pursuant to the first point not recognise legal separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.







Amendment 31






ARTICLE 1, POINT 7


Article 20ea (new) (Regulation (EC) No 2201/2003)





 




Article 20ea



Information from the Member States



1.
   
By … at the latest (2), the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the applicable law.




The Member States shall notify the Commission of any subsequent change to those rules.




2.
   
The Commission shall make available to the public the information which has been notified to it pursuant to paragraph 1 by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.








(1)  

OJ L 174, 27.6.2001, p. 25.



(2)  
Three months after the date on which this Regulation comes into force.