CORRIGENDUM : Proposal for a Council Decision No …/2010/EU authorising enhanced cooperation in the area of the law applicable to divorce and legal separation {COM(2010) 105 final}
Date: 2010-03-24
Institutions: European Commission
Subjects: divorce, judicial cooperation in civil matters in the EU, matrimonial law

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EUROPEAN COMMISSION 

Brussels, 30.3.2010 
COM(2010) 104 final/2 

2010/0066 (APP) 

CORRIGENDUM : annule et remplace le document COM(2010) 104 final du 24.3.2010 
Concerne les versions EN, DE, FR 

Proposal for a 

COUNCIL DECISION No …/2010/EU 

authorising enhanced cooperation in the area of the law applicable to divorce and legal 
separation 

{COM(2010) 105 final} 

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EXPLANATORY MEMORANDUM 

INTRODUCTION 

On  17  July  2006,  the  Commission  adopted  a  proposal1  for  a  Council  Regulation 
amending  Regulation  (EC)  No  2201/20032  as  regards  jurisdiction  and  introducing 
rules concerning applicable law in matrimonial matters (‘Rome III’)3. 

The legal basis for the proposed Council Regulation was Articles 61(c) and 67(1) of 
the  Treaty  establishing  the  European  Community4.  The  proposal  related  to  judicial 
cooperation in civil matters having ‘aspects relating to family law’. This legal basis 
prescribed unanimity. The European Parliament delivered its opinion on 21 October 
20085. 

Starting in October 2006, the Commission proposal was in the Committee on Civil 
Law Matters (Rome III). It was a priority for the German, Portuguese and Slovenian 
Presidencies. In April 2007, the proposal was discussed at a meeting of the Council 
and the Ministers agreed on certain guidelines. 

By mid-2008, discussions had come to a point where it appeared that a few Member 
States  had  specific  problems  which  made  it  impossible  for  them  to  accept  the 
proposed Regulation. In particular, one Member State did not consider it appropriate 
that its courts should apply foreign divorce law, which it regards as more restrictive 
than its own divorce law, and wished to continue applying its own substantive law to 
any  divorce  requested  in  its  courts  (lex  fori  approach).  At  the  same  time,  a  large 
majority of Member States were of the opinion that rules on applicable law were an 
essential element of the proposed Regulation. They supported the principle laid down 
in  the  proposal  of  applying  the  law  of  the  country  with  which  the  spouses  have  a 
close  connection,  which,  in  certain  cases,  would  mean  the  application  of  foreign 
divorce law.  

Successive  Council  presidencies  and  the  Commission  tried  to  find  solutions  within 
the proposed Regulation by devising different options that would give greater scope 
for the application of the law of the forum without jeopardising the main objectives 
of the proposal. These joint efforts were however unsuccessful. 

COM(2006) 399. 
Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of 
judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 
No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 
In accordance with Articles 1 and 2 of Protocol No 5 (now Protocol No 22) on the position of Denmark 
annexed to the Treaties, Denmark was not taking part in the adoption of the proposed Regulation, and 
was not bound by it or subject to its application. In accordance with Article 3 of Protocol No 4 (now 
Protocol No 21) on the position of the United Kingdom and Ireland annexed to the Treaties, Ireland and 
the United Kingdom had not given notice of their wish to take part in the adoption and application of 
that proposed Regulation. 
Now Article 81(3) of the Treaty on the Functioning of the European Union. 
P6_TA(2008)0502, (OJ C 15 E, 21.1.2010, p. 128). 

1. 

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2. 

3. 

4. 

5. 

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6. 

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2. 

9. 

3. 

3.1. 

10. 

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Therefore,  at  the  Council  meeting  of  5  and  6  June  2008,  Ministers  concluded  that 
‘there  was  no  unanimity  to  go  ahead  with  the  proposed  Regulation  and  that 
insurmountable  difficulties  existed,  making  a  decision  requiring  unanimity 
impossible  now  and  in  the  foreseeable  future’.  The  Council  established  that  ‘the 
objectives  of  the  proposed  Regulation  could  not  be  attained  within  a  reasonable 
period by applying the relevant provisions of the Treaties’6. 

In  July-August  2008,  nine  Member  States  (Bulgaria,  Greece,  Spain,  Italy, 
Luxembourg,  Hungary,  Austria,  Romania  and  Slovenia)  addressed  a  request  to  the 
Commission indicating that they wished to establish enhanced cooperation between 
themselves  in  the  area  of  applicable  law  in  matrimonial  matters  and  that  the 
Commission  should  submit  a  proposal  to  the  Council  to  that  end.  In  January  2009, 
France  also  addressed  a  similar  request.  On  3  March  2010,  Greece  withdrew  its 
request. 

This proposal is the Commission’s response to these requests. 

LEGAL BASIS FOR THE ENHANCED COOPERATION 

Enhanced  cooperation  is  regulated  by  Article  20  of  the  Treaty  on  European  Union 
(TEU)  and  Articles  326  to  334  of  the  Treaty  on  the  Functioning  of  the  European 
Union (TFEU). The implication of these provisions is that two proposals are needed 
to implement enhanced cooperation in the area of the law applicable to divorce and 
legal separation: 

–  a Commission proposal for a Council Decision authorising enhanced cooperation 
in  the  area  of  the  law  applicable  to  divorce  and  legal  separation,  based  on 
Article 329(1) TFEU, and 

–  a  Commission  proposal  for  a  Council  Regulation  implementing  enhanced 
cooperation in the area of the law applicable to divorce and legal separation, based 
on Article 81(3) TFEU7.  

ASSESSMENT OF THE LEGAL CONDITIONS FOR ENHANCED COOPERATION 

Authorising  decision  as  last  resort  and  participation  of  at  least  nine  Member 
States 

Article 20(2) TEU lays down that the decision authorising enhanced cooperation can 
be  adopted  by  the  Council  only  as  a  last  resort,  when  it  has  established  that  the 
objectives of such cooperation cannot be attained within a reasonable period by the 
Union as a whole, and that at least nine Member States participate in it. 

Document 10383/08 PV/CONS 36 JAI 311 of 10 July 2008. 
Article 20(1) TEU refers to the application of ‘the relevant provisions of the Treaties’; for the area of 
applicable law in divorce, this means the provisions in Chapter 3 (Judicial cooperation in civil matters) 
of  Title  V  (Area  of  freedom,  security  and  justice)  of  the  Treaty  on  the  Functioning  of  the  European 
Union. 

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11. 

12. 

As mentioned above, the Council concluded at its meeting of 5 and 6 June 2008 that 
there was no unanimity to go ahead with the 2006 proposal and that insurmountable 
difficulties existed, making a decision requiring unanimity impossible at the time and 
in the foreseeable future. The Council established that the objectives of the proposed 
Regulation could not be attained within a reasonable period by applying the relevant 
provisions of the Treaties. The Council thus concluded that no other solution for the 
Union as a whole could be found, and enhanced cooperation could be used as a last 
resort. 

To date, the Commission has received requests from nine Member States (Bulgaria, 
Spain,  France,  Italy,  Luxembourg,  Hungary,  Austria,  Romania  and  Slovenia) 
indicating that they intend to establish enhanced cooperation between themselves in 
the area of applicable law in matrimonial matters.  

3.2. 

Area covered by the Treaties 

13. 

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15. 

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Article 329(1) TFEU lays down that enhanced cooperation can be established ‘in one 
of the areas covered by the Treaties’. 

The  nine  Member  States  have  requested  to  be  allowed  to  establish  enhanced 
cooperation between themselves ‘in the area of applicable law in matrimonial matters 
(Rome  III)’.  This  means  the  conflict-of-law  rules  that  determine  which  substantive 
law applies to an international divorce that has connections with more than one legal 
order. Conflict-of-law rules are mentioned as a specific item in the list of measures 
under Article 81(2) TFEU, while Article 81(3) TFEU distinguishes between conflict-
of-law  rules  in  civil  and  commercial  matters  in  general  and  measures  concerning 
family  law.  The  Commission  considers  that  conflict-of-law  rules  in  family  law 
constitute an area, admittedly a limited but well-defined area, within the meaning of 
the Treaties, in which enhanced cooperation may be established. 

In  this  context,  it  should  be  clarified  that  the  area  of  the  proposed  enhanced 
cooperation, ‘the law applicable to divorce and legal separation’, does not comprise 
conflict-of-law rules for the property consequences of divorce8. Also, the subject is 
not the substantive law on divorce, i.e. grounds for divorce or the procedure to apply 
for divorce. 

The Commission is preparing a legislative initiative on matrimonial property regimes and consequences 
of  separation  of  couples  with  cross-border  elements,  as  requested  most  recently  by  the  Stockholm 
Programme.  The  process  has  included  a  Green  Paper  on  conflict  of  laws  in  matters  concerning 
matrimonial  property  regimes,  including  the  question  of  jurisdiction  and  mutual  recognition  -  
COM(2006) 400. The initiative will cover the private international law rules on matrimonial property 
regimes  both  during  the  marriage  and  in  the  case  of  dissolution  through  divorce  or  separation.  The 
conflict-of-law rules on divorce itself and on matrimonial property regimes are separate, and enhanced 
cooperation in one area does not prejudge the legislation in the other area. 

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3.3. 

Furthering  the  objectives  of  the  Union,  protecting  its  interests  and  reinforcing 
its integration process 

3.3.1.  General context 

16. 

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18. 

19. 

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Taking  due  account  of  the  relevant  parts  of  the  Impact  Assessment9  for  and  the 
Explanatory Memorandum to  the above-mentioned 2006 Commission proposal, the 
purpose  of  the  enhanced  cooperation  is to provide a  clear and comprehensive  legal 
framework, covering applicable law rules in matters of divorce and legal separation 
and allowing the parties a certain degree of autonomy in choosing the applicable law. 

The  Commission  widely  consulted  stakeholders  as  part  of  the  above-mentioned 
impact assessment process. This was done through a Green Paper on applicable law 
and  jurisdiction  in  divorce  matters  issued  in  200510.  The  Green  Paper  identified  a 
number  of  shortcomings  in  the  existing  situation  and  identified  different  possible 
policy options to address the problems. The options included inter alia the status quo, 
harmonisation  of  the  conflict-of-law  rules,  introducing  a  limited  possibility  for  the 
spouses  to  choose  the  applicable  law  and  finally  a  combination  of  the  different 
solutions.  The  Commission  organised  a  public  hearing  and  an  expert  meeting  in 
2006. Most of the responses acknowledged the need to enhance legal certainty and 
predictability, to introduce limited party autonomy and to prevent a ‘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 might lead to delays and 
additional costs in matrimonial proceedings. A public opinion survey found that 60 % 
of Europeans expect the EU to play a role to facilitate legislation as regards divorce 
in another Member State11. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation  would  concern  tens  of  thousands  of  ‘international’  couples  who  divorce 
each  year  in  the  EU.  Many  Europeans  from  different  Member  States  get  married 
every year and, accordingly, there are also many ‘international’ divorces each year in 
Europe. 

There are approximately 122 million marriages in the EU, and something in the order 
of 16 million (13 %) are assumed to be ‘international’12. As an example, in the year 
2007,  there  were  2 400 000  marriages  in  the  European  Union  and  approximately 
300 000 of these were ‘international’. Although ‘international’ marriages are mainly 
concentrated in a few of the larger European countries, they occur everywhere across 
the European Union and consequently concern a large number of European citizens. 

SEC(2006)  949,  see  http://ec.europa.eu/governance/impact/ia_carried_out/cia_2006_en.htm#jls.  The 
Impact Assessment report was informed by a ‘Study to inform a subsequent Impact Assessment on the 
Commission proposal on jurisdiction and applicable law in divorce matters’ prepared by the European 
Policy Evaluation Consortium (EPEC) in 2006, see   
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm. 
COM(2005) 82 . 
Flash Eurobarometer No 188 — Consular Protection and Family Law. 
The information in these paragraphs is based on the final report of the EPEC Impact Assessment Study 
on  Community  instruments  concerning  matrimonial  property  regimes  and  property  of  unmarried 
couples with transnational elements, 2010. 

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20. 

In  2007  there  were  1 040 000  divorces  in  the  27  Member  States  of  the  European 
Union, of which 140 000 (13 %) had an ‘international’ element. The Member States 
with the highest share of new ‘international’ divorces in the European Union in 2007 
were Germany (34 000), France (20 500) and the UK (19 500). 

3.3.2.  Current situation in the area of the law applicable to divorce and legal separation 

21. 

22. 

Currently, with no Union rules, 26 different sets of conflict-of-law rules on divorce 
exist in the 24 Member States that participate in judicial cooperation in civil matters 
in  the  EU  and  in  the  two  Member  States  that  may  opt  in13.  Most  Member  States 
determine the applicable law on the basis of a scale of connecting factors that seek to 
ensure that the proceedings are governed by the legal order with which the marriage 
has the closest connection. Other Member States apply systematically their domestic 
laws (lex fori) in matrimonial proceedings. 

The  current  situation  may  give  rise  to  a  number  of  problems  in  matrimonial 
proceedings  with  an  ‘international’  element.  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 the complexity of the national 
conflict-of-law  rules  make  it  very  difficult  for  ‘international’  couples  to  predict 
which law will apply to their matrimonial proceedings. A large majority of Member 
States do not provide any possibility for the spouses to choose the 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 citizens. Finally, 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 proceedings are governed by a particular law and thereby to safeguard his or her 
interests. 

23. 

It  is  very  difficult  to  estimate  the  economic  disadvantages  caused  by  the  non-
harmonisation  of  the  conflict-of-law  rules  on  divorce.  In  the  context  of  the  impact 
assessment study carried out to inform the Commission about matrimonial property 
regimes,  it  was  found  that  the  notional  costs  of  problems  relating  to  international 
marriages  in  divorce  situations  could  total  up  to  EUR  205  million  in  the  EU.  The 
costs could accrue to courts, the spouses and third parties14. 

3.3.3.  Benefits  of  enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and 

legal separation 

24. 

Nine  Member  States  are  requesting  enhanced  cooperation  in  the  area  of  the  law 
applicable 
legal  separation:  Bulgaria,  Spain,  France,  Italy, 
Luxembourg, Hungary, Austria, Romania and Slovenia. The total population of these 

to  divorce  and 

13 

14 

Denmark  does  not  take  part  in  the  adoption  of  measures  proposed  pursuant  to  Title  V  of  Part  Three 
TFEU and the measures are not binding upon or applicable in Denmark, in accordance with Articles 1 
and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaties. Unlike Denmark, the 
UK  and  Ireland  are  entitled  to  participate  in  cooperation  under  Title  V  of  Part  Three  TFEU,  in 
accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland 
annexed to the Treaties. In the UK, although there are separate jurisdictions of England/Wales, Scotland 
and Northern Ireland, the choice-of-law rules in divorce are similar. 
EPEC Impact Assessment Study on Community instruments concerning matrimonial property regimes 
and property of unmarried couples with transnational elements, final report, 2010. 

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25. 

26. 

27. 

28. 

nine  requesting  Member  States  is  216.3  million.  This  is  almost  half  (44 %)  of  the 
Union  population15.  The  proportion  of  ‘international’  marriages  and  divorces  is 
around 13 % in these participating Member States16, i.e. on average the same level as 
usually occurring in the EU. The estimated numbers for divorces are around 440 000 
divorces  in  these  countries  annually  and  53 000  of  these  having  international 
elements17.  Enhanced  cooperation  is  open  to  all  Member  States;  the  more  Member 
States participating in it, the higher would be the number of citizens concerned. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation would bring citizens the following benefits:  

Strengthening  legal  certainty  and  predictability.  The  enhanced  cooperation  will 
introduce harmonised conflict-of-law rules in matters of divorce and legal separation 
to  enable  spouses  to  easily  predict  which  law  will  apply  to  their  matrimonial 
proceedings. This is based in the first place on the choice of 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 proceedings are 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  scope  for  party  autonomy  in  matrimonial  matters.  The  national  conflict-of-
law  rules  provide  in  principle  for  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. In the enhanced cooperation, the legal framework will be more 
flexible by introducing a limited possibility for the spouses to choose the applicable 
law  concerning  divorce  and  legal  separation.  To  allow  spouses  to  come  to  an 
agreement could be particularly useful in cases of divorce by mutual consent. 

Preventing a ‘rush to court’ by one spouse. Finally, enhanced cooperation in the area 
of  the  law  applicable  to  divorce  and  legal  separation  addresses  the  problem  of  the 
‘rush to court’ by one spouse. 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  a  ‘rush  to  court’,  since  any  court  seised  within  the 
participating Member States would apply the law designated on the basis of common 
rules. 

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Total population of the Union in 2009: 494 million. 
The number of divorces with ‘international’ elements in 2007, and their proportion of all divorces in the 
requesting Member States: Bulgaria: 700/4 %; Spain: 14 500/11 %; France 20 500/13 %; Italy 3 000/6 %; 
Luxembourg:  500/48 %;  Hungary:  500/2 %;  Austria:  5 000/25 %;  Romania:  500/1 %  and  Slovenia: 
300/10 %. 
EPEC Impact Assessment Study on Community instruments concerning matrimonial property regimes 
and property of unmarried couples with transnational elements, final report, 2010. 

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29. 

30. 

Some concerns  have  been  expressed that the harmonisation of conflict-of-law  rules 
would oblige courts to apply foreign divorce law and that this might lead to delays 
and  additional  costs  in  matrimonial  proceedings.  Such  problems  should  be  rare  in 
practice since the connecting factors would lead to the application of the law of the 
forum  in  the  large  majority  of  cases.  The  experience  of  the  Member  States  which 
today  use  connecting  factors  that  lead  to  the  application  of  foreign  law  does  not 
reveal  major  difficulties.  The  current  conflict-of-law  rules  in  the  nine  requesting 
Member States include such connecting factors that in certain cases already lead to 
the application of foreign law by their courts. Thus enhanced cooperation would not 
be  problematic  in  terms  of  additional  costs  or  delays.  Finally,  the  adoption  of 
measures to facilitate the application of foreign law should reduce possible negative 
consequences18. 

From  the  institutional  standpoint,  the  enhanced  cooperation  is  better  than  the 
possibility of interested Member States entering into negotiations on an international 
agreement on the matter of the law applicable to divorce and legal separation. This 
alternative  would  certainly  be  less  advantageous.  Even  if  the  acts  adopted  in 
enhanced  cooperation  are  binding  only  on  participating  Member  States,  they 
nevertheless fall under Union control in that area. Thus, the Commission can monitor 
their correct application under the Treaties and the Court of Justice of the EU has the 
jurisdiction to give preliminary rulings concerning their interpretation, thus ensuring 
the coherent and unified interpretation of measures adopted in enhanced cooperation. 

3.3.4.  Fulfilling the requirements of Article 20(1) TEU 

31. 

32. 

Article 20(1) TEU requires that enhanced cooperation aims to further the objectives 
of the Union, protect its interests and reinforce its integration process. 

One of the tasks of the Union is to offer its citizens an area of freedom, security and 
justice without internal frontiers, in which the free movement of persons is ensured 
(Article  3(2)  TEU).  The  area  of  justice  includes  developing  judicial  cooperation  in 
civil  matters  having  cross-border  implications,  based  on  the  principle  of  mutual 
recognition  of  judgments  (Article  81(1)  TFEU).  For  this  purpose,  the  Union  can 
adopt  measures  aimed  at  ensuring,  firstly,  the  mutual  recognition  and  enforcement 
between  Member  States  of  judgments,  and  secondly,  the  compatibility  of  the  rules 
applicable in the Member States concerning conflict of laws (Article 81(2)(a) and (c) 
TFEU). 

33. 

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 mutual trust in 
judicial decisions given in other Member States19. 

18 

19 

Decision No 568/2009/EC of the European Parliament and of the Council amending Council Decision 
2001/470/EC establishing a European Judicial Network in civil and commercial matters introduces such 
a measure by requiring the contact points to supply any information to facilitate the application of the 
law  of  another  Member  State  that  is  applicable  under  EU  or  international  instruments;  see 
Article 5(2)(c) as amended. 
Programme  of  measures  to  implement  the  principle  of  mutual  recognition  of  decisions  in  civil  and 
commercial matters, adopted on 30 November 2000, (OJ C 12, 15.1.2001, p. 1). 

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34. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation between the requesting Member States would further the Union objective 
of ensuring the compatibility of the rules applicable in the Member States concerning 
conflict of laws, in that it would increase the level of compatibility as compared to 
the  current  situation.  As  explained  above,  26  different  legal  sets  of  conflict-of-law 
rules on divorce exist in the 26 Member States that participate in judicial cooperation 
in civil matters. In the situation of enhanced cooperation between the nine requesting 
Member  States,  there  would  be  18  different  legal  regimes,  thus  bringing  greater 
harmonisation in conflict-of-law rules and reinforcing the integration process in this 
part of the EU. 

3.4. 

Compliance with the Treaties and Union law 

35. 

36. 

37. 

3.5. 

38. 

In accordance with Article 326 TFEU, enhanced cooperation must comply with the 
Treaties and Union law. 

The  enhanced  cooperation  would  not  affect  the  existing  acquis.  It  would  be 
established  in  an  area  that  is  covered  by  the  shared  competences  of  the  Union  but 
where to date no common Union rules exist. The first Union instrument adopted in 
the  area  of  family  law,  Council  Regulation  (EC)  No  1347/200020,  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 matrimonial proceedings. It did not, however, include rules on applicable 
law. The entry into force of Council Regulation (EC) No 2201/2003, which repealed 
and  replaced  Council  Regulation  (EC)  No  1347/2000  as  of  1  March  2005,  did  not 
entail  any  change  in  this  respect.  The  question  of  applicable  law  was  not  raised 
during the negotiations on this Regulation, which took over virtually unchanged the 
provisions on matrimonial matters from Council Regulation (EC) No 1347/2000. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation  would  not  cause  discrimination  based  on  nationality,  as  prohibited  by 
Article  18  TFEU,  because  the  proposed  conflict-of-law  rules  will  be  universal  in 
nature and they will apply to all the proceedings before the courts of the participating 
Member States, whatever the parties’ nationality or residence. On the other hand, the 
courts  of  the  non-participating  countries  will  apply  their  domestic  conflict-of-law 
rules under their private international law as they do currently. 

No  undermining  of  the  internal  market  or  economic,  social  and  territorial 
cohesion; no barrier to or discrimination in trade; no distortion of competition 

Article  326  TFEU  provides  that  enhanced  cooperation  must  not  undermine  the 
internal  market  and  economic,  social  and  territorial  cohesion;  and  it  must  not 
constitute  a  barrier  to  or  discrimination  in  trade  between  Member  States  or  distort 
competition between them. 

20 

Council  Regulation  (EC)  No  1347/2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments in matrimonial matters and in matters of parental responsibility for children of both spouses 
(OJ L 160, 30.6.2000, p. 19). 

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39. 

40. 

41. 

42. 

3.6. 

43. 

44. 

45. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation  does  not  present  problems  as  regards  these  legal  conditions.  Indeed,  the 
proposal  implementing  enhanced  cooperation  in  the  area  of  the  law  applicable  to 
divorce  and  legal  separation  will  serve  to  facilitate  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  existing  differences  between  the 
national  laws  with  regard  to  applicable  law  in  matrimonial  matters.  The  increased 
legal certainty on the conflict-of-law rules on divorce will thus have a positive effect 
on  couples  who  exercise  their  right  to  free  movement  between  the  participating 
Member States.  

Given  the  nature  of  the  proposal,  concerning  as  it  does  only  the  relations  between 
two  individuals,  it  does  not  affect  enterprises  or  legal  relations  in  the  market  and 
neither does it affect trade or competition in the Union. Finally, the proposal would 
not affect the regional policy of the Union  

Indeed,  in  providing  for  the  harmonisation  of  conflict-of-law  rules  the  proposal 
would  considerably  simplify  the  situation  for  private  parties  and  practitioners,  who 
within the participating Member States will be able to determine the applicable law 
on the basis of one single set of rules that will replace the existing numerous national 
conflict-of-law rules of the participating Member States in this area.  

Even  if  not  all  couples  in  the  Union  will  benefit  from  the  legal  certainty  or  the 
simplification brought by the proposal, the situation of the couples before courts of 
non-participating Member States will not deteriorate compared to the situation today; 
thus  the  proposal  will  not  cause  any  unjustified  differentiated  treatment  between 
citizens. 

Respecting  the  rights,  competences  and  obligations  of  non-participating 
Member States 

Article 327 TFEU requires that any enhanced cooperation respects the competences, 
rights and obligations of those Member States that do not participate in it. 

The adoption of the common conflict-of-law rules for nine Member States does not 
affect  the  rules  of  the  non-participating  Member  States.  The  non-participating 
Member States will continue to have their own private international law rules on the 
matter of the law applicable to divorce and legal separation. 

According to the proposal, a couple residing in a participating Member State would 
be able to choose the law to be applied to their divorce. A limited choice-of-law for 
divorce is not totally unknown in the Member States today; there are cases where it is 
allowed,  e.g.  under  the  Dutch  or  German  matrimonial  legislation.  If,  under  the 
enhanced cooperation, the couple who made a choice-of-law agreement later moves 
to  a  non-participating  Member  State  and  seises  a  court  there  for  divorce,  the 
recognition of the choice-of-law agreement will depend upon the domestic law of the 
court  seised.  If  the  couple  has  chosen  the  law  of  the  court  seised,  it  should  be  less 
problematic for the court to respect the choice-of-law agreement. 

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46. 

47. 

At the level of public international law, there are no such international agreements on 
the law applicable to divorce and legal separation between the participating and non-
participating Member States that would be breached by the enhanced cooperation. 

Finally, it can be noted that enhanced cooperation in the area of the law applicable to 
divorce  and  legal  separation  does  not  affect  non-participating  Member  States  as 
regards  applicable  law rules  in  areas  closely related to  divorce, such as conflict-of-
law rules on parental responsibility or on  maintenance  obligations.  The  conflict-of-
law rules on parental responsibility are governed by the 1996 Hague Convention on 
jurisdiction,  applicable  law,  recognition,  enforcement  and  cooperation  in  respect  of 
parental  responsibility  and  the  measures  for  the  protection  of  children.  Currently, 
eight  Member  States  are  party  to  the  Convention,  and  the  remaining  18  Member 
States must ratify it or accede to it before 5 June 201021. The conflict-of law rules on 
maintenance  obligations  are  laid  down  by  the  2007  Hague  Protocol  on  the  law 
applicable  to  maintenance  obligations22,  to  be  applied  pursuant  to  Article  15  of 
Regulation  (EC)  No  4/2009  relating  to  maintenance  obligations23  that  will  apply 
from  18  June  2011.  The  rules  on  the  law  applicable  to  divorce  and  to  attribution, 
exercise  or  extinction  of  parental  responsibility  or  to  maintenance  obligations  are 
independent. The court that exercises jurisdiction to decide upon  an application for 
divorce  in  a  non-participating  Member  State  applies  its  domestic  conflict-of-law 
rules  to  decide  the  law  applicable  to  divorce  and  legal  separation,  the  rules  of  the 
1996  Hague  Convention  to  determine  the  law  applicable  to  parental  responsibility 
and  the  rules  of  the  2007  Hague  Protocol  and  Regulation  (EC)  No  4/2009  to 
determine the law applicable to maintenance obligations.  

3.7. 

Conclusion on the fulfilment of legal conditions 

48. 

On the basis of above, the Commission concludes that all the legal conditions set by 
the Treaties for the enhanced cooperation are fulfilled. 

3.8. 

Respect for fundamental rights 

49. 

Enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation  respects  the  fundamental  rights  set  out  in  the  Charter  of  Fundamental 
Rights  of  the  European  Union,  and  in  particular  Article  21  thereof  on  non-
discrimination.  The  conflict-of-law  rules  proposed  in  the  Regulation  implementing 
the enhanced cooperation will be applied to all divorces in the participating Member 
States without discrimination on any ground.  

21 

22 

23 

Council Decision 2008/431/EC authorising certain Member States to ratify, or accede to, in the interest 
of  the  European  Community,  the  1996  Hague  Convention  on  Protection  of  Children  (OJ  L  151, 
11.6.2008, p. 36). 
Council  Decision  2009/941/EC  on  the  conclusion  by  the  European  Community  of  the  2007  Hague 
Protocol on the law applicable to maintenance obligations (OJ L 331, 16.12.2009, p. 17). 
Council  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law,  recognition  and  enforcement  of 
decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1). 

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3.9. 

Conclusion on enhanced cooperation 

50. 

The  Commission  considers  that  the  benefits  of  using  enhanced  cooperation  in  the 
area of the law applicable to divorce and legal separation are numerous compared to 
the  option  of  the  status  quo  and  that  the  advantages  in  this  particular  case  of 
enhanced cooperation outweigh the possible disadvantages. The common conflict-of-
law rules on divorce and legal separation will considerably facilitate the lives of tens 
of thousands of couples in the participating Member States. This is in line with the 
Stockholm  Programme,  in  which  the  European Council considered that the process 
of harmonising conflict-of-law rules at Union level should continue in areas where it 
is necessary, such as separation and divorces24. Therefore, the Commission proposes 
authorising  the  enhanced  cooperation  between  the  requesting  Member  States.  The 
Commission stresses that the enhanced cooperation in the area of the law applicable 
to  divorce  and  legal  separation  is  open  at  any  time  to  all  Member  States,  in 
accordance with Article 328 TFEU, and it encourages the Member States that have 
not  yet  so  requested  to  participate  in  the  enhanced  cooperation,  thus  boosting  its 
benefits and advantages. 

24 

The Stockholm Programme — An open and secure Europe serving and protecting citizens, adopted by 
the European Council on 10-11 December 2009. 

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2010/0066 (APP) 

Proposal for a 

COUNCIL DECISION No. …/2010/EU 

authorising enhanced cooperation in the area of the law applicable to divorce and legal 
separation 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 329(1) thereof, 

Having regard to the requests made by Bulgaria, Spain, France, Italy, Luxembourg, Hungary, 
Austria, Romania and Slovenia, 

Having regard to the proposal from the Commission, 

Having regard to the consent of the European Parliament25, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Union  has  set  itself  the  objective  of  maintaining  and  developing  an  area  of 
freedom, security and justice in which the free movement of persons is ensured. For 
the progressive establishment of such an area, the Union is to adopt measures relating 
to judicial cooperation in civil matters with cross-border implications. 

Pursuant to Article 81 of the Treaty on the Functioning of the European Union, those 
measures  are  to  include  promoting  the  compatibility  of  the  rules  applicable  in  the 
Member States concerning conflict of laws, including measures concerning family law 
with cross-border implications. 

On  17  July  2006,  the  Commission  adopted  a  proposal  for  a  Council  Regulation 
amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules 
concerning applicable law in matrimonial matters. 

At  its  meeting  on  5  and  6  June  2008  the  Council  adopted  political  guidelines  which 
recorded  that  there  was  no  unanimity  to  go  ahead  with  the  proposed  Regulation  and 
insurmountable  difficulties  existed,  making  unanimity  impossible  at  the  time  and  in 
the  foreseeable  future.  It  established  that  the  objectives  of  the  proposed  Regulation 
could not be attained within a reasonable period by applying the relevant provisions of 
the Treaties.  

(5) 

In these circumstances, Greece, Spain, Italy, Hungary, Luxembourg, Austria, Romania 
and  Slovenia  addressed  a  request  to  the  Commission  by  letters  dated  28  July  2008 

25 

OJ C […], […], p. […]. 

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indicating that they intended to establish enhanced cooperation between themselves in 
the  area  of  applicable  law  in  matrimonial  matters  and  that  the  Commission  should 
submit a proposal to the Council to that end. Bulgaria addressed an identical request to 
the Commission by letter dated 12 August 2008 and France joined the request by letter 
dated 12 January 2009. On 3 March 2010, Greece withdrew its request. In total, nine 
Member States have requested enhanced cooperation. 

The enhanced cooperation should provide a clear and comprehensive legal framework 
in  the  area  of  divorce  and  legal  separation  in  the  participating  Member  States  and 
ensure  adequate  solutions  for  citizens  in  terms  of  legal  certainty,  predictability  and 
flexibility and prevent a ‘rush to court’. 

The  conditions  laid  down  in  Article  20  of  the  Treaty  on  European  Union  and  in 
Articles  326  and  329  of  the  Treaty  on  the  Functioning  of  the  European  Union  are 
fulfilled.  

The  area  of  the  enhanced  cooperation,  the  law  applicable  to  divorce  and  legal 
separation,  is  identified  by  Article  81(2)(c)  and  Article  81(3)  of  the  Treaty  on  the 
Functioning of the European Union as one of the areas covered by the Treaties. 

The  requirement  of  last  resort  in  Article  20(2)  of  the  Treaty  on  European  Union  is 
fulfilled  in  that  the  Council  established  in  June  2008  that  the  objectives  of  the 
Regulation cannot be attained within a reasonable period by the Union as a whole. 

(6) 

(7) 

(8) 

(9) 

(10)  Enhanced cooperation in the area of the law applicable to divorce and legal separation 
aims to develop judicial cooperation in civil matters having cross-border implications, 
based  on  the  principle  of  mutual  recognition  of  judgments,  and  to  ensure  the 
compatibility of the rules applicable in the Member States concerning conflict of laws. 
Thus,  it  furthers  the  objectives  of  the  Union,  protects  its  interests  and  reinforces  its 
integration process as required by Article 20(1) of the Treaty on European Union.  

(11)  Enhanced cooperation in the area of the law applicable to divorce and legal separation 
complies  with  the  Treaties  and  Union  law,  and  it  does  not  undermine  the  internal 
market or economic, social and territorial cohesion. It does not constitute a barrier to 
or  discrimination  in  trade  between  Member  States  and  does  not  distort  competition 
between them. 

(12)  Enhanced cooperation in the area of the law applicable to divorce and legal separation 
respects  the  competences,  rights  and  obligations  of  those  Member  States  that  do  not 
participate in it. The common conflict-of-law rules in the participating Member States 
do not affect the rules of the non-participating Member States. The courts of the non-
participating Member States continue to apply their existing domestic conflict-of-law 
rules to determine the law applicable to divorce or legal separation. 

(13) 

In  particular,  enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and 
legal separation complies with Union law on judicial cooperation in civil matters, in 
that enhanced cooperation does not affect any pre-existing acquis. 

(14)  This Decision respects the principles enshrined in the Charter of Fundamental Rights 

of the European Union, and in particular Article 21 thereof. 

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(15)  Enhanced cooperation in the area of the law applicable to divorce and legal separation 
is open at any time to all Member States, in accordance with Article 328 of the Treaty 
on the Functioning of the European Union, 

HAS ADOPTED THIS DECISION: 

Article 1 

Bulgaria,  Spain,  France,  Italy,  Luxembourg,  Hungary,  Austria,  Romania  and  Slovenia  are 
hereby  authorised  to  establish  enhanced  cooperation  between  themselves  in  the  area  of  the 
law  applicable  to  divorce  and  legal  separation,  by  applying  the  relevant  provisions  of  the 
Treaties. 

This Decision shall enter into force immediately upon its adoption. 

Article 2 

Article 3 

This  Decision  is  addressed  to  the  Republic  of  Bulgaria,  the  Kingdom  of  Spain,  the  French 
Republic,  the  Italian  Republic, the  Grand  Duchy  of  Luxembourg,  the  Republic  of  Hungary, 
the Republic of Austria, Romania and the Republic of Slovenia. 

Done at Brussels,  

For the Council 
The President 

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