Proposal for a COUNCIL REGULATION on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
Date: 2011-03-16
Institutions: European Commission
Subjects: civil register, economic system, enforcement of ruling, heritage protection, judicial cooperation, marriage, matrimonial law

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EUROPEAN COMMISSION 

Brussels, 16.3.2011 
COM(2011) 126 final 

2011/0059 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on jurisdiction, applicable law and the recognition and enforcement of decisions in 
matters of matrimonial property regimes  

{COM(2011) 125 final} 
{COM(2011) 127 final} 
{SEC(2011) 327 final} 
{SEC(2011) 328 final} 

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EXPLANATORY MEMORANDUM 

1. 

BACKGROUND TO THE PROPOSAL 

1.1. 

General background 

Article 67(1) of the Treaty on the Functioning of the European Union provides that the Union is to 
constitute  an  area  of  freedom,  security  and  justice  with  respect  for  fundamental  rights  and  the 
different legal systems and traditions of the Member States. Paragraph 4 of that article lays down 
that  the  Union  is  to  facilitate  access  to  justice,  in  particular  through  the  principle  of  mutual 
recognition  of  judicial  and  extrajudicial  decisions  in  civil  matters.  Article  81  of  the  Treaty 
explicitly  refers  to  measures  aimed  at  ensuring  'the  mutual  recognition  and  enforcement  between 
Member States of judgments and of decisions in extrajudicial cases' and 'the compatibility of the 
rules  applicable  in  the  Member  States  concerning  conflict  of  laws  and  of  jurisdiction'.  Many 
instruments have already been adopted on this basis, in particular Regulation (EC) No 2201/2003 
of 27 November 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. None of them, however, cover matrimonial property regimes. 

The  adoption  of  European  legislation  on  matrimonial  property  regimes  was  among  the  priorities 
identified in the 1998 Vienna Action Plan. The programme on mutual recognition of decisions in 
civil  and  commercial  matters  adopted  by  the  Council  on  30 November  20001  provided  for  the 
drafting  of  an  instrument  on  jurisdiction  and  the  recognition  and  enforcement  of  decisions  as 
regards 'rights in property arising out of a matrimonial relationship and the property consequences 
of  the  separation  of  an  unmarried  couple'.  The  Hague  programme2,  which  was  adopted  by  the 
European  Council  on  4  and  5  November  2004,  set  the  implementation  of  the  mutual  recognition 
programme as a top priority and called on the Commission to submit a Green Paper on 'the conflict 
of laws in matters concerning matrimonial property regimes, including the question of jurisdiction 
and mutual recognition', and stressed the need to adopt legislation by 2011. 

The Stockholm Programme, which was adopted by the European Council on 11 December 2009, 
also  states  that  mutual  recognition  must  be  extended  to  matrimonial  property  regimes  and  the 
property consequences of the separation of unmarried couples. 

In the 'EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights', adopted on 
27  October  20103,  the  Commission  identified  uncertainty  surrounding  the  property  rights  of 
international couples as one of the main obstacles faced by EU citizens in their  daily lives when 
they tried to exercise the rights the EU conferred on them across national borders. To remedy this, 
it  announced  that  it  would  adopt  in  2011  a  proposal  for  legislation  to  make  it  easier  for 
international couples (either married or registered partners) to know which courts had jurisdiction 
and which law applied to their property rights. 

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3 

OJ L 12, 15.1.2001, p. 1. 
OJ L 53, 3.3.2005, p. 1. 
COM(2010) 603. 

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1.2. 

Grounds for and objectives of the proposal 

The  increased  mobility  of  persons  within  an  area  without  internal  frontiers  leads  to  a  marked 
increase in the number of couples formed by nationals of different Member States who may live in 
a Member State of which they do not have the nationality and acquire property in more than one 
Union  country.  A  study  carried  out  by  the  consortium  ASSER-UCL  in  20034  showed  the  large 
number  of  transnational  couples  within  the  Union  and  the  practical  and  legal  difficulties  such 
couples  face,  both  in  the  daily  management  of  their  property  and  in  its  division  if  the  couple 
separate or one of its members dies. These difficulties often arise from the great disparities between 
the applicable rules of substantive law and private international law governing the property effects 
of marriage.  

Because  of  the  distinctive  features  of  marriage  and  registered  partnerships,  and  of  the  different 
legal consequences resulting from these forms of union, the Commission is presenting two separate 
Regulations: one on jurisdiction, applicable law and the recognition and enforcement of decisions 
in  matters  of  matrimonial  property  regimes,  and  the  other  on  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  in  matters  of  the  property  consequences  of  registered 
partnerships.  

The  purpose  of  this  proposal  is  to  establish  a  clear  legal  framework  in  the  European  Union  for 
determining jurisdiction and the law applicable to matrimonial property regimes and facilitating the 
movement of decisions and instruments among the Member States. 

2. 

RESULT OF THE CONSULTATIONS – IMPACT ASSESSMENT 

Before  this  proposal  was  drawn  up,  a  broad  consultation  exercise  took  place  with  the  Member 
States,  the  other  institutions  and  the  public.  Following  the  2003  study,  on  17 July 2006  the 
Commission  published  a  Green  Paper  on  conflict  of  laws  in  matters  concerning  matrimonial 
property  regimes,  including  the  question  of  jurisdiction  and  mutual  recognition5,  that  launched 
wide-ranging  consultations  on  the  subject.  A  group  of  experts,  PRM/III,  was  set  up  by  the 
Commission to draw up the proposal. The group was made up of experts representing the range of 
professions concerned and the different European legal traditions; it met five times between 2008 
and  2010.  The  Commission  also  held  a  public  hearing  on  28 September  2009  involving  some 
hundred  participants;  the  debates  confirmed  the  need  for  an  EU  instrument  for  matrimonial 
property  regimes  that  covered  in  particular  applicable  law,  jurisdiction  and  the  recognition  and 
enforcement of decisions. A meeting with national experts was held on 23 March 2010 to discuss 
the thrust of the proposal being drafted. 

Finally,  the  Commission  conducted  a  joint  impact  study  on  the  proposals  for  Regulations  on 
matrimonial  property  regimes  and  the  property  consequences  of  registered  partnerships.  It  is 
attached to this proposal. 

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ASSER-UCL Consortium, Study in comparative law on the rules governing conflicts of jurisdiction and laws 
on matrimonial property regimes and the implementation for property issues of the separation of unmarried 
couples in the Member States. See: 
http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 
COM(2006) 400. 

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3. 

LEGAL ASPECTS OF THE PROPOSAL 

3.1. 

Legal basis 

The legal basis for this proposal is Article 81(3) of the Treaty on the Functioning of the European 
Union, which confers on the Council the power to adopt measures concerning family law having 
cross-border implications after consulting the European Parliament. 

A  matrimonial  property  regime  derives  from  the  existence  of  a  family  relationship  between  the 
individuals involved. Matrimonial property regimes are so closely linked with marriage that, even 
though they concern property relationships between spouses and between spouses and third parties, 
they must be considered part of family law. They exist where a marriage exists and disappear when 
the  marriage  is  dissolved  (following  the  death  of  one  of  the  spouses,  or  a  divorce  or  legal 
separation). 

The  aim  of  the  proposal  is  to  establish  a  comprehensive  set  of  rules  of  international  private  law 
applicable  to  matrimonial  property  regimes.  It  therefore  touches  on  matters  of  legal  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of  decisions  in  matrimonial  property  cases. 
The rules proposed are concerned only with cross-border cases. 

3.2. 

Subsidiarity principle 

The  only  way  of  achieving  the  proposal's  objectives  is  through  common  rules  on  matrimonial 
property  regimes,  which  must  be  identical  in  order  to  guarantee  legal  certainty  and  predictability 
for  citizens.  Unilateral  action  by  Member  States  would  therefore  run  counter  to  this  objective. 
There  are  two  international  conventions  of  the  Hague  Conference  on  Private  International  Law 
relevant  to  this  issue,  namely  the  Convention  of  17  July  1905  on  conflict  of  laws  relating  to  the 
effects  of  marriage  on  the  rights  and  duties  of  spouses  in  their  personal  relationships  and  with 
regard to their estates, and the Convention of 14 March 1978 on the law applicable to matrimonial 
property regimes. However, only three Member States have ratified them and they do not offer the 
solutions needed to deal with the scale of the problems covered by this proposal, as revealed in the 
impact study and the public hearing. Given the nature and the scale of the problems experienced by 
European citizens, the objectives can be achieved only at Union level. 

3.3. 

Proportionality principle 

The proposal complies with the principle of proportionality in that it is strictly limited to what is 
necessary  to  achieve  its  objectives.  It  does  not  try  to  harmonise  the  Member  States'  laws 
concerning  matrimonial  property  regimes.  Nor  does  it  affect  the  way  in  which  the  ending  of 
matrimonial  property  regimes  is  taxed  by  Member  States.  This  proposal  will  not  entail  any 
financial  or  administrative  burdens  on  citizens  and  only  a  very  limited  additional  burden  on 
national authorities. 

3.4. 

Impact on fundamental rights 

In  accordance  with  the  strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental 
Rights by the European Union6, the Commission has checked that the proposal complies with the 
rights set out in the Charter. 

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Communication from the Commission, COM(2010) 573 of 19.10.2010. 

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It does not affect the right to respect for private and family life nor the right to marry and to found a 
family according to national laws, as provided for in Articles 7 and 9 of the Charter.  

The right to property referred to in Article 17 of the Charter is strengthened. The predictability of 
the law applicable to all the couple's property will in fact enable spouses o exercise their property 
rights more fully.  

The  Commission  has  also  checked  that  the  proposal  complies  with  Article  21,  prohibiting  any 
discrimination.  

Finally, the proposal would increase citizens' access to justice in the EU, in particular for married 
couples.  It  would  facilitate  implementation  of  Article  47  of  the  Charter  of  Fundamental  Rights, 
which guarantees the right to an effective remedy and to a fair trial. By setting out objective criteria 
for determining the court having jurisdiction, parallel proceedings and appeals precipitated by the 
most active party can be avoided. 

3.5. 

Choice of instrument 

The need for legal certainty and predictability calls for clear and uniform rules and requires that the 
legislation take the form of a regulation. The proposed rules on jurisdiction, applicable law and free 
movement of decisions are set out clearly and in detail, requiring no transposition into national law. 
The  objectives  of  legal  certainty  and  predictability  would  be  compromised  if  the  Member  States 
had discretion with regard to implementing the rules. 

4. 

BUDGETARY IMPACT, SIMPLIFICATION AND CONSISTENCY WITH OTHER UNION POLICIES 

4.1. 

Budgetary impact 

The proposal will have no impact on the Union budget. 

4.2. 

Simplification 

The  harmonisation  of  the  rules  on  jurisdiction  will  greatly  simplify  procedures  by  making  it 
possible  to  establish  the  court  with  jurisdiction  over  a  matrimonial  property  case  on  the  basis  of 
common rules. If courts seised with divorce proceedings, legal separations, annulments of marriage 
and  succession  cases  in  application  of  existing  or  future  EU  legislation  have  their  jurisdiction 
extended to any related matrimonial property regime proceedings, citizens will be able to have the 
same court deal with all aspects of their situation. 

The  harmonisation  of  conflict-of-law  rules  will  considerably  simplify  procedures  by  enabling 
citizens  to  determine  which  law  is  applicable  on  the  basis  of  a  single  set  of  rules  replacing  the 
existing national conflict-of-law rules of the participating Member States. 

Finally,  the  rules  proposed  for  the  recognition  and  enforcement  of  court  decisions  will  facilitate 
their movement between different Member States. 

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4.3. 

Consistency with other Union policies 

This proposal is part of the Commission's efforts to dismantle the obstacles faced by EU citizens in 
their daily lives when they try to exercise the rights the EU confers on them, as outlined in the 2010 
EU Citizenship Report referred to earlier. 

5. 

COMMENTS ON THE ARTICLES 

5.1. 

Chapter I: Scope and definitions 

Article 1 

The  notion  of  'matrimonial  property  regime'  must  be  given  an  autonomous  interpretation  and 
embrace considerations of both the spouses' daily management of their property and the liquidation 
of the property regime as a result of the couple's separation or the death of one of the partners. 

To determine the areas that will be covered it proved preferable to compile a comprehensive list of 
matters excluded from the Regulation. Thus, matters already covered by existing EU regulations, 
such  as  maintenance  obligations7,  especially  between  spouses,  and  issues  concerning  the  validity 
and effect of gifts8, will be excluded from the scope of the Regulation. Matters arising from the law 
of succession are also excluded. 

The Regulation does not affect the nature of rights in rem relating to property, the classification of 
property and of rights, nor the determination of the prerogatives of the holder of such rights.  

The disclosure of property rights, in particular the functioning of the land register and the effects of 
an  entry  or  failure  to  make  an  entry  in  this  register,  is  also  excluded  from  the  scope  of  the 
Regulation. 

Article 2 

For the sake of consistency and to facilitate understanding and implementation, some definitions of 
terms appearing in this Regulation are common to other EU instruments currently in force or under 
negotiation. 

The proposed definition of a 'court' is drafted so as to include authorities and persons who exercise 
functions by delegation or designation of a court, so that they are to be treated as court decisions 
for  purposes  of  recognition  and  enforcement  in  a  Member  State  other  than  the  State  where  they 
were delivered. 

5.2. 

Chapter II: Jurisdiction 

Legal proceedings in connection with matrimonial property regimes often arise from the liquidation 
of the property when the couple ceases to exist, either as a result of the death of one of them or of 
their separation.  

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Governed by Regulation (EC) No 4/2009, OJ L 7, 10.1.2009, p. 1. 
Governed by Regulation (EC) No 593/2008, OJ L 177, 04/07/2008, p. 6. 

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The aim of this Regulation is to enable citizens to have the various related procedures handled by 
the courts of the same Member State. To this end, the Regulation seeks to ensure that the rules for 
establishing the jurisdiction of the courts called on to handle the property aspects of marriages are 
in line with the existing or proposed rules in other European legislation. 

Article 3 

To ensure that in the event of the death of one of the spouses the competent court can handle both 
the succession of the deceased spouse and the liquidation of the matrimonial property, this article 
provides  that  the  court  having  jurisdiction  for  wills  and  successions  according  to  the  rules  laid 
down in the proposed  Regulation  on  jurisdiction, applicable law, recognition and enforcement of 
decisions  and  authentic  instruments  in  matters  of  succession  and  the  creation  of  a  European 
Certificate  of  Succession,  should  have  its  jurisdiction  enlarged  to  include  the  liquidation  of  the 
matrimonial property resulting from the succession or will in question. 

Article 4 

Similarly,  the  court  with  jurisdiction  for  divorce  proceedings,  legal  separation  or  marriage 
annulment  in  accordance  with  Regulation  (EC)  2201/2003  may,  if  the  spouses  agree,  extend  its 
jurisdiction to the liquidation of the matrimonial property following the separation procedure and to 
other matters concerning the matrimonial property arising from this procedure. 

Article 5 

This  article  provides  for  rules  governing  jurisdiction  that  would  apply  independently  of  any 
succession or separation proceedings (for example, a change of matrimonial regime at the initiative 
of  the  spouses).  A  list  of  connecting  factors,  in  order  of  precedence,  would  make  it  possible  to 
establish the Member State whose courts have jurisdiction to deal with such proceedings. 

The proposed criteria include the habitual residence of the spouses, their last habitual residence if 
one of them still resides there or the habitual residence of the defendant; these widely used criteria 
frequently coincide with the location of the spouses' property. 

Article 6 

Where no Member States has jurisdiction in application of the previous articles, this article makes 
provision  for  establishing  the  Member  State  whose  courts  may  handle  the  case  by  way  of 
exception.  This  rule  ensures  access  to  justice  for  spouses  and  interested  third  parties  when  the 
property or properties of either spouse or of both spouses is located on the territory of a particular 
Member  State,  and  also  where  both  spouses  have  the  nationality  of  a  particular  Member  State. 
property or properties of either spouse or of both spouses is located on the territory of a particular 
Member State, and also where both spouses have the nationality of a particular Member State.  

5.3. 

Chapter III: Applicable law 

Article 15 

The option proposed in the Regulation is that of a single scheme: all the property of the spouses 
would be subject to the same law, the law applicable to the matrimonial property regime.  

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Immovable property has a special place in the property of couples, and one of the possible options 
would be to make it subject to the law of the country in which it is located (lex situs), thus allowing 
a  measure  of  dismemberment  of  the  law  applicable  to  the  matrimonial  property  regime.  This 
solution is, however, fraught with difficulties, particularly when it comes to the liquidation of the 
matrimonial  property,  in  that  it  would  lead  to  an  undesirable  fragmentation  of  the  unity  of  the 
matrimonial property (while the liabilities would remain in a single scheme), and to the application 
of  different  laws  to  different  properties  within  the  matrimonial  property  regime.  The  Regulation 
therefore provides that the law applicable to matrimonial property, whether chosen by the spouses 
or,  in  the  absence  of  any  such  choice,  determined  under  other  provisions,  will  apply  to  all  the 
couple's property, movable or immovable, irrespective of their location. 

Article 16 

During the consultations a broad consensus emerged in favour of according the parties a degree of 
freedom in choosing the applicable law for the matrimonial property regime. This option should be 
clearly  regulated  to  prevent  choice  of  a  law  having  little  relation  to  the  couple's  real  situation  or 
past history: it must be based on the law of habitual residence or on the nationality of one of the 
spouses or future spouses.  

Article 17 

In  most  Member  States  spouses  do  not  usually  expressly  choose  the  law  applicable  to  their 
matrimonial property regime, hence the importance of common rules in all the Member States to 
determine what law is applicable in these situations. The applicable law would be identified using a 
list of objective connecting factors in order of precedence, which would ensure predictability both 
for the spouses and for third parties. These criteria are designed to reconcile the life actually lived 
by the couple, especially the establishment of their first common habitual residence, and the need 
to be able to easily determine the law applicable to their matrimonial property regime.  

Article 18 

In  addition  to  the  possibility  of  spouses'  choosing  the  law  applicable  at  the  time  of  the  marriage 
(Article 16), this article makes provision for making such a choice later. Similarly, spouses having 
chosen the applicable law at the time of their marriage may later decide to change it. 

Only  a  voluntary  change  of  applicable  law  is  possible.  The  Regulation  does  not  provide  for  any 
automatic change of applicable law without the parties expressing their consent to such a change or 
without their having been notified in order to avoid producing any legal uncertainty. 

Furthermore, to prevent a change of the law applicable to the matrimonial property regime having 
undesirable effects for the spouses, such a change is effective only in the future, unless the spouses 
expressly decide to make it retrospective. 

The  rights  of  third  parties  whose  interests  might  be  prejudiced  by  a  change  of  the  couple's 
matrimonial property regime are protected: the Regulation provides that the effects of a change of 
matrimonial property regime are confined to the parties and do not affect the rights of third parties. 

Articles 19-20  

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These provisions set out rules on the official procedures for choosing the applicable law and on the 
form  of  the  marriage  contract.  They  are  also  designed  to  help  protect  vulnerable  persons:  where 
there is a vulnerable person in a married couple, it will often be the wife. 

Article 22  

To  take  account  of  national  rules,  in  particular  those  for  protection  of  the  family  home,  this 
provision allows a Member State to set aside the application of a foreign law in favour of its own. 
Accordingly, to protect the family home, a Member State where the home is located may apply its 
own rules for the protection of the family home. Exceptionally, this Member State may apply its 
own law to all persons living on its territory in 'preference' to the law normally applicable or that of 
a marriage contract concluded in another Member State.  

5.4. 

Chapter IV: Recognition, enforceability and enforcement 

The proposed Regulation provides for the free movement of decisions, authentic instruments and 
court  settlements  concerning  matrimonial  property  regimes.  It  would  thus  introduce  mutual 
recognition based on the mutual trust arising out of the integration of the Member States within the 
European Union. 

This  free  movement  would  take  the  form  of  a  uniform  procedure  for  the  recognition  and 
enforcement  of  decisions,  authentic  acts  and  legal  transactions  originating  in  another  Member 
State.  The  procedure  replaces  the  national  procedures  currently  in  force  in  the  different  Member 
States. The grounds for non-recognition or refusal to enforce are also harmonised at European level 
or reduced to the absolute minimum. They replace the varied, and often broader, grounds that exist 
at national level at present. 

Decisions  

The proposed rules on the recognition and enforcement of decisions are in line with those proposed 
for successions. They therefore refer to the exequatur procedure existing in civil and commercial 
matters. So any decision of a Member States would be recognised in other Member States without 
any  special  procedure.  To  have  a  decision  enforced,  applicants  would  have  to  follow  a  uniform 
procedure  in  the  State  of  enforcement  to  obtain  a  declaration  of  enforceability.  The  procedure  is 
unilateral  and  is  initially  confined  to  a  verification  of  documents.  Only  at  a  later  stage,  if  the 
defendant  objects,  would  the  judge  proceed  to  consider  possible  grounds  for  refusal.  This  offers 
adequate protection of the rights of defendants. 

These  rules  are  a  major  step  forward  compared  with  the  present  situation.  At  present,  the 
recognition  and  enforcement  of  decisions  is  governed  by  the  Member  States'  national  laws  or 
bilateral  agreements  between  some  Member  States.  The  procedures  to  be  followed  vary  with  the 
Member  States  concerned,  as  do  the  documents  required  for  obtaining  a  declaration  of 
enforceability and the grounds on which foreign decisions may be rejected. 

As was explained earlier, this Regulation is a first step in the area of matrimonial property regimes 
and it concerns family law (see point 3.1). Given the specific circumstances, the free movement of 
decisions is subject to the exequatur procedure as currently laid down in the Brussels I Regulation9. 

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OJ L 12, 16.1.2001, p. 1. 

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Nevertheless,  the  removal  of  intermediate  proceedings  (exequatur)  could,  as  in  other  areas,  be 
considered at a later stage, after an evaluation of the rules in this Regulation and the development 
of judicial cooperation on matrimonial property regimes and related areas, notably the Brussels IIa 
Regulation10. 

The acts of authorities exercising their powers by delegation or designation in accordance with the 
definition  of  a  court  in  Article  2  of  this  Regulation  will  be  treated  as  court  decisions  and  thus 
covered by the provisions on recognition and enforcement under this chapter 

Authentic instruments 

Given  the  practical  importance  of  authentic  instruments  for  matrimonial  property  regimes  and  in 
order to ensure the consistency of this Regulation with other EU instruments, this Regulation must 
ensure their recognition for the purposes of their free movement. 

This recognition means that they will enjoy the same evidentiary effect in respect of the contents of 
the registered instrument and the facts contained therein and the same presumption of authenticity 
and enforceability as in the country of origin. 

5.5. 

Chapter V: Effects in respect of third parties 

These  provisions  are  designed  to  reconcile  legal  certainty  for  the  spouses  with  the  protection  of 
third  parties  against  the  application  of  a  rule  they  could  not  have  known  or  foreseen.  Member 
States are therefore given the possibility, in cases of transactions between a spouse and a third party 
residing on their territory, of providing that the spouse may not rely on the rules of the matrimonial 
regime unless it has been disclosed there or the third party was aware of it or ought to have been 
aware of it.  

10 

Council Regulation (EC) No 2201/2003 of 27 November 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.  

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2011/0059 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of 
matrimonial property regimes  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the Functioning  of  the  European  Union,  and  in  particular  Article 
81(3) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament11, 

Having regard to the opinion of the European Economic and Social Committee12, 

Having regard to the opinion of the Committee of the Regions13, 

Acting in accordance with a special legislative procedure,  

Whereas: 

(1) 

(2) 

(3) 

The European 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 
gradual establishment  of such an area, the  Union must adopt measures relating to judicial 
cooperation in civil matters having cross-border implications. 

The  European  Council  meeting  in  Tampere  on  15  and  16  October  1999  endorsed  the 
principle of mutual recognition of judgments and other decisions of judicial authorities as 
the  cornerstone  of  judicial  cooperation  in  civil  matters  and  invited  the  Council  and  the 
Commission to adopt a programme of measures to implement that principle. 

On  30  November  2000  the  Council  adopted  a  draft  programme  of  measures  for 
implementation of the principle of mutual recognition of decisions in civil and commercial 
matters14. The programme identifies measures relating to the harmonisation of conflict-of-
law  rules  that  will  facilitate  the  mutual  recognition  of  judgments.  It  provides  for  the 

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OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 12, 15.1.2001, p. 1. 

EN 

11 

   EN 

 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

development  of  one  or  more  mutual-recognition  instruments  in  matters  of  matrimonial 
property regimes and the property consequences of the separation of unmarried couples.  

The  European  Council  meeting  in  Brussels  on  4  and  5  November  2004  adopted  a  new 
programme entitled 'The Hague Programme: strengthening freedom, security and justice in 
the European Union'15. In this programme the Council asked the Commission to present a 
Green  Paper  on  conflicts  of  law  in  matters  concerning  matrimonial  property  regimes, 
including the question of jurisdiction and mutual recognition. The programme also stressed 
the need to adopt an instrument in this area by 2011. 

On 17 July 2006 the Commission adopted the Green Paper on the conflict of laws in matters 
concerning matrimonial property regimes, including the question of jurisdiction and mutual 
recognition16.  This  Green  Paper  launched  wide  consultations  on  all  aspects  of  the 
difficulties  faced  by  couples  in  Europe  when  it  comes  to  the  liquidation  of  their  common 
property and the legal remedies available. 

The  Stockholm  programme  of  December  2009,  which  sets  justice,  freedom  and  security 
priorities  for  2010  to  201417,  also  stated  that  mutual  recognition  should  be  extended  to 
matrimonial property regimes and the property consequences of the separation of couples. 

In  the  'EU  Citizenship  Report  2010:  Dismantling  the  obstacles  to  EU  citizens’  rights', 
adopted  on  27  October  201018,  the  Commission  announced  it  would  adopt  a  proposal  for 
legislation  to  eliminate  the  obstacles  to  the  free  movement  of  persons,  in  particular  the 
difficulties experienced by couples in managing or dividing their property. 

To provide married couples with legal certainty as to their property and offer them a degree 
of predictability, all the rules applicable to matrimonial property regimes should be covered 
in a single instrument.  

In order to achieve the desired objectives, this Regulation brings together in one instrument 
the  provisions  on  legal  jurisdiction,  applicable  law,  the  recognition  and  enforcement  of 
decisions  and  authentic  instruments,  and  reliance  on  matrimonial  property  regimes  in 
dealings with third parties. 

(10)  This Regulation covers issues in connection with matrimonial property regimes. It does not 

define 'marriage', which is defined by the national laws of the Member States. 

(11)  The  scope  of  this  Regulation  should  extend  to  all  civil  matters  in  relation  to  matrimonial 
property regimes, both the daily management of marital property and the liquidation of the 
regime, in particular as a result of the couple's separation or the death of one of the spouses. 

(12)  As maintenance obligations between spouses are governed by Regulation (EC) No 4/2009 
of  18  December  2008  on  jurisdiction,  applicable  law,  recognition  and  enforcement  of 
decisions and cooperation in matters relating to maintenance obligations19, they should be 
excluded  from  the  scope  of  this  Regulation,  as  should  issues  relating  to  the  validity  and 

15 
16 
17 
18 
19 

OJ L 53, 3.3.2005, p. 1. 
COM(2006) 400. 
OJ L 115, 4.5.2010, p. 1. 
COM(2010) 603. 
OJ L 7, 10.1.2009, p. 1. 

EN 

12 

   EN 

                                                 
effect  of  gifts  covered  by  Regulation  (EC)  No  593/2008  of  the  European  Parliament  and 
Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)20. 

(13) 

Issues  relating  to  the  nature  of  rights  in  rem  that  may  exist  under  the  national  law  of 
Member States, and those linked to the disclosure of such rights, should also be excluded 
from the scope of this Regulation, as they are from Regulation (EU) No ... [of the European 
Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement 
of  decisions  and  authentic  instruments  in  matters  of  succession  and  the  creation  of  a 
European Certificate of Succession]21 . This means that the courts of the Member State in 
which  property  of  one  or  both  spouses  is  located  may  take  measures  under  property  law, 
regarding  such  things  as  the  recording  of  a  transfer  of  the  property  in  the  public  register, 
where the law of that Member State so provides.  

(14)  To  reflect  the  increasing  mobility  of  couples  during  their  married  life  and  facilitate  the 
proper  administration  of  justice,  the  rules  on  jurisdiction  in  this  Regulation  provide  that 
matters of matrimonial property regimes, including liquidation of the regime as a result of 
divorce,  legal  separation  or  marriage  annulment,  are  to  be  dealt  with  by  the  courts  of  the 
Member  State  having  jurisdiction  to  deal  with  the  divorce,  separation  or  marriage 
annulment  proceedings  under  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 1347/200022. 

(15)  Similarly, matters of matrimonial property regimes linked to the death of a spouse should be 
treated by the court with jurisdiction over the succession of that spouse, as established under 
the Regulation (EU) No ... [of the European Parliament and of the Council on jurisdiction, 
applicable  law,  recognition  and  enforcement  of  decisions  and  authentic  instruments  in 
matters of succession and the creation of a European Certificate of Succession]. 

(16)  Where  matters  of  matrimonial  property  regimes  are  not  linked  to  a  divorce,  separation  or 
marriage annulment or to the death of a spouse, the spouses may decide to submit questions 
related to their matrimonial regime to the courts of the Member State of the law they chose 
as the law applicable to their matrimonial property regime. Such a decision is expressed by 
an agreement between the spouses which may be concluded at any moment, even during the 
proceedings.  

(17)  This  Regulation  must  allow  the  territorial  jurisdiction  of  a  Member  State's  courts  over 
applications concerning matrimonial property regimes to be determined in cases other than 
those of separation of the couple or death of a spouse, and must in particular have a forum 
necessitatis provision to prevent situations where justice is denied. 

(18)  The  proper  functioning  of  justice  requires  that  irreconcilable  decisions  should  not  be 
pronounced  in  the  Member  States.  Accordingly,  this  Regulation  must  provide  for  general 
rules  of  procedure  based  on  Council  Regulation  (EC)  No 44/2001  on  jurisdiction  and  the 
recognition and enforcement of judgments in civil and commercial matters23. 

20 
21 
22 
23 

OJ L 177, 4.7.2008, p. 6. 
OJ C […], […], p. […]. 
OJ L 338, 23.12.2003, p. 1. 
OJ L 12, 16.1.2001, p. 1. 

EN 

13 

   EN 

                                                 
(19)  To facilitate spouses' management of their property, this Regulation will authorise them to 
choose the law applicable to all the property covered by their matrimonial property regime, 
regardless of the nature or location of the property, among the laws with which they have 
close  links  because  of  residence  or  their  nationality.  This  choice  may  be  made  at  any 
moment, at the time of the marriage or during the course of the marriage.  

(20)  The  law  chosen  by  the  spouses  to  govern the property consequences of their  marriage or, 
failing such a choice, the law determined by the connecting factors should apply even if it is 
not the law of a Member State. To facilitate the application of one Member State's law by 
another  Member  States'  courts,  the  European  Judicial  Network  in  civil  and  commercial 
matters  set  up  by  Council  Decision  2001/470/EC  of  28  May  200124  can  help  inform  the 
courts about the substance of the foreign law. 

(21)  Where no applicable law is chosen, and with a view to reconciling predictability and legal 
certainty  with  consideration  of  the  life  actually  lived  by  the  couple,  this  Regulation  must 
introduce  harmonised  conflict-of-laws  rules  to  establish  the  law  applicable  to  all  the 
spouses' property on the basis of a scale of connecting factors. The first common habitual 
residence of the spouses after marriage should constitute the first criterion, ahead of the law 
of the spouses' common nationality at the time of their marriage. If neither of these criteria 
apply,  or  failing  a  first  common  habitual  residence  in  cases  where  the  spouses  have  dual 
common  nationalities  at  marriage,  the  third  criterion  should  be  the  State  with  which  the 
spouses have the closest links, taking into account all the circumstances, including the place 
where the marriage was celebrated, it being made clear that these links are to be considered 
as they were at the time the marriage was entered into. 

(22) 

If nationality is used to determine the applicable law, account must be taken of the fact that 
some States with a legal system based on common law use 'domicile' and not 'nationality' as 
a connecting factor.  

(23)  To ensure the legal certainty of transactions and to prevent any change of the law applicable 
to  the  matrimonial  property  regime  being  made  without  the  spouses  being  notified,  no 
change of law applicable to the matrimonial property regime should be made except at the 
express  desire  of  the  parties.  Such  a  change  by  the  spouses  should  not  have  retrospective 
effect unless they expressly so stipulate. Whatever the case, it may not infringe the rights of 
third parties and the validity of transactions entered into previously. 

(24)  Given  the  importance  of  choosing  the  law  applicable  to  the  matrimonial  property  regime, 
the Regulation must contain some guarantees to ensure that spouses or prospective spouses 
are  aware  of  the  consequences  of  their  choice.  This  choice  should  be  made  in  the  form 
prescribed for the marriage contract by the law of the State chosen or by that of the State 
where  the  instrument  is  drawn  up,  and  at  least  be  in  writing  and  dated  and  signed  by  the 
couple. Any additional formal requirements imposed by the law of the State chosen or that 
of  the  State  where  the  instrument  is  drawn  up  concerning  the  validity,  disclosure  or 
registration of such contracts should be complied with.  

(25)  Considerations  of  public  interest  dictate  that  courts  in  the  Member  States  be  given  the 
possibility  in  exceptional  circumstances  of  setting  aside  the  foreign  law  in  a  given  case 
where  its  application  would  be  manifestly  contrary  to  the  public  policy  of  the  forum. 

24 

OJ L 174, 27.6.2001, p. 25. 

EN 

14 

   EN 

                                                 
However, the courts should not be able to apply the public policy exception in order to set 
aside  the  law  of  another  Member  State  or  to  refuse  to  recognise  or  enforce  a  decision, 
authentic instrument or legal transaction drawn up in another State if the application of the 
public  policy  exception  would  be  contrary  to  the  Charter  of  Fundamental  Rights  of  the 
European Union, and in particular Article 21, which prohibits all forms of discrimination.  

(26)  Since  there  are  States  in  which  two  or  more  systems  of  law  or  sets  of  rules  concerning 
matters  governed  by  this  Regulation  coexist,  there  should  be  a  provision  governing  the 
extent to which this Regulation applies in the different territorial units of those States. 

(27)  Since  mutual  recognition  of  decisions  rendered  in  the  Member  States  is  one  of  the 
objectives  of  this  Regulation,  this  Regulation  must  lay  down  rules  on  the  recognition  and 
enforcement  of  decisions  on  the  basis  of  Regulation  (EC)  No  44/2001,  adjusted  where 
necessary to meet the specific requirements of matters covered by this Regulation. 

(28) 

In order to take into account the different methods of dealing with matters of matrimonial 
property regimes in the Member States, this Regulation must guarantee the recognition and 
enforcement of authentic instruments. Nevertheless, authentic instruments cannot be treated 
as court decisions with regard to their recognition. The recognition of authentic instruments 
means that they enjoy the same evidentiary effect with regard to their contents and the same 
effects as in their country of origin, and a presumption of validity which may be rebutted if 
they are contested.  

(29)  While  the  law  applicable  to  matrimonial  property  regimes  must  govern  the  legal 
relationship  between  a  spouse  and  a  third  party,  the  conditions  for  relying  on  that  law 
should be regulated by the law of the Member State of habitual residence of the spouse or 
the third party, in the interests of the third party's protection. The law of that Member State 
may  thus  provide  that  the  spouse  may  invoke  the  law  of  his  or  her  matrimonial  property 
regime against the third party only if the conditions of registration or disclosure laid down 
in that Member State have been complied with, unless the third party was aware of or ought 
to have been aware of the law applicable to the matrimonial property regime. 

(30)  Given  the  international  commitments  entered  into  by  the  Member  States  mean  that  this 
Regulation should not affect international conventions to which one or more Member States 
are  party  when  it  is  adopted.  Consistency  with  the  general  objectives  of  this  Regulation 
requires,  however,  that  the  Regulation  take  precedence  over  the  conventions  between 
Member States.  

(31)  The  objectives  of  this  Regulation,  namely  the  free  movement  of  persons  in  the  European 
Union,  the  opportunity  for  spouses  to  arrange  their  property  relations  in  respect  of 
themselves and others during their life as a couple and when liquidating their property, and 
greater  predictability  and  legal  certainty,  cannot  be  sufficiently  achieved  by  the  Member 
States  and  can  therefore,  by  reason  of  the  scale  and  effects  of  this  Regulation,  be  better 
achieved at European Union level; under the principle of subsidiarity enshrined in Article 5 
of the Treaty on European Union, therefore, the Union has competence to act. In accordance 
with the principle of proportionality, as set out in that Article, this Regulation does not go 
beyond what is necessary in order to achieve those objectives. 

(32)  This  Regulation  respects  fundamental  rights  and  observes  the  principles  recognised  in  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  in  particular  Articles  7,  9,  17,  21 

EN 

15 

   EN 

and 47 concerning, respectively, respect for private and family life, the right to marry and to 
found  a  family  according  to  national  laws,  property  rights,  the  prohibition  of  any  form  of 
discrimination and the right to an effective remedy and to a fair trial. The Member States' 
courts must apply this Regulation in a manner consistent with these rights and principles. 

(33) 

In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom 
and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on 
European Union and to the Treaty on the Functioning of the European Union, [the United 
Kingdom  and  Ireland  have  given  notice  of  their  wish  to  take  part  in  the  adoption  and 
application  of  this  Regulation]/[without  prejudice  to  Article  4  of  the  Protocol,  the  United 
Kingdom and Ireland will not participate in the adoption of this Regulation and will not be 
bound by it or be subject to its application].  

(34) 

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to 
the Treaty on European Union and to the Treaty on the Functioning of the European Union, 
Denmark will not participate in the adoption of this Regulation and is not therefore bound 
by it or required to apply it, 

HAS ADOPTED THIS REGULATION: 

Chapter I 

Scope and definitions 

Article 1 
Scope 

1. 

This Regulation shall apply to matrimonial property regimes.  

It shall not apply in particular to revenue, customs or administrative matters. 

In  this  Regulation,  'Member  State'  means  any  Member  State  with  the  exception  of 
Denmark, [the United Kingdom and Ireland]. 

The following are excluded from the scope of this Regulation: 

2. 

3. 

(a) 

the capacity of spouses, 

(b)  maintenance obligations, 

(c) 

gifts between spouses, 

(d) 

the succession rights of a surviving spouse, 

(e) 

companies set up between spouses, 

(f) 

the nature of rights in rem relating to a property and the disclosure of such rights. 

EN 

16 

   EN 

For the purposes of this Regulation, the following definitions shall apply: 

Article 2 
Definitions 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

‘matrimonial  property  regime’:  a  set  of  rules  concerning  the  property  relationships  of 
spouses, between the spouses and in respect of third parties; 

'marriage contract': any agreement by which spouses organise their property relationships 
between themselves and in relation to third parties; 

'authentic instrument': an instrument which has been officially drawn up or registered as 
an authentic instrument in the Member State of origin and the authenticity of which:  

(i) 

relates to the signature and the content of the authentic instrument, and 

(ii)  has  been  established  by  a  public  authority  or  other  authority  empowered  for  that 

purpose; 

'decision': any decision given in a matter of a matrimonial property regime by a court of a 
Member  State,  whatever  the  decision  may  be  called,  including  the  terms  'decree', 
'judgment', 'order' or 'writ of execution', and the determination of costs or expenses by an 
officer of the court; 

'Member State of origin': the Member State in which, as the case may be, the decision has 
been given, the marriage contract concluded, the authentic instrument drawn up, the court 
settlement  approved  or  the  instrument  liquidating  the  common  property  or  any  other 
instrument  produced  by  or  before  the  judicial  authority  or  authority  of  delegation  or 
designation; 

'Member State addressed': the Member State in which recognition and/or enforcement of 
the  decision,  marriage  contract,  authentic  instrument,  court  settlement,  instrument  of 
liquidation  of  the  common  property  or  any  other  instrument  produced  by  or  before  the 
judicial authority or authority of delegation or designation is requested; 

'court': any competent judicial authority in the Member States which carries out a judicial 
function in matters of matrimonial property regimes, or any other non-judicial authority or 
person  carrying  out,  by  delegation  or  designation  by  a  judicial  authority  of  a  Member 
State,  the  functions  falling  within  the  jurisdiction  of  the  courts  as  provided  for  in  this 
Regulation; 

(h) 

'court settlement’: a settlement relating to a matrimonial property regime which has been 
approved by a court or concluded before a court in the course of proceedings. 

EN 

17 

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Chapter II 

Jurisdiction 

Article 3 
Jurisdiction in the event of the death of one of the spouses 

The courts of a Member State seised by an application concerning the succession of a spouse under 
Regulation (EC) ... [of the European Parliament and of the Council on jurisdiction, applicable law, 
recognition and enforcement of decisions and authentic instruments in matters of succession and 
the creation of a European Certificate of Succession] shall also have jurisdiction to rule on matters 
of the matrimonial property regime arising in connection with the application. 

Article 4 
Jurisdiction in cases of divorce, legal separation or marriage annulment 

The courts of a Member State called upon to rule on an application for divorce, judicial separation 
or  marriage  annulment  under  Regulation  (EC)  No 2201/2003,  shall  also  have  jurisdiction,  where 
the spouses so agree, to rule on matters of the matrimonial property regime arising in connection 
with the application.  

Such an agreement may be concluded at any time, even during the proceedings. If it is concluded 
before the proceedings, it must be drawn up in writing and dated and signed by both parties. 

Failing agreement between the spouses, jurisdiction is governed by Articles 5 et seq. 

Article 5 
Jurisdiction in other cases  

1. 

In  cases  other  than  those  provided  for  in  Articles  3  and  4  jurisdiction  to  rule  on 
proceedings  in  a  matter  of  the  spouses'  matrimonial  property  regime  shall  lie  with  the 
courts of the Member State: 

(a) 

of the spouses' common habitual residence, or failing that, 

(b)  of  the  last  common  habitual  residence  if  one  of  them  still  resides  there,  or,  failing 

that,  

(c) 

of the defendant's habitual residence, or failing that, 

(d)  of the nationality of both spouses or, in the case of the United Kingdom and Ireland, 

of their common 'domicile'. 

2. 

Both  parties  may  also  agree  that  the  courts  of  the  Member  State  whose  law  they  have 
chosen  as  the  law  applicable  to  their  matrimonial  property  regime  in  accordance  with 

EN 

18 

   EN 

Articles  16  and  18  shall  also  have  jurisdiction  to  rule  on  matters  of  their  matrimonial 
property regime. 

Such  an  agreement  may  be  concluded  at  any  time,  even  during  the  proceedings.  If  it  is 
concluded before the proceedings, it must be drawn up in writing and dated and signed by 
both parties. 

Article 6 
Subsidiary jurisdiction 

Where no court has jurisdiction according to Articles 3, 4 and 5, the courts of a Member State shall 
have  jurisdiction  in  so  far  as  property  or  properties  of  one  or  both  spouses  are  located  in  the 
territory of that Member State, but in that event the court seised shall have jurisdiction to rule only 
in respect of the property or properties in question. 

Article 7 
Forum necessitatis 

Where  no  court  of  a  Member  State  has  jurisdiction  under  Articles 3,  4,  5  and 6,  the  courts  of  a 
Member  State  may,  exceptionally  and  if  the  case  has  a  sufficient  connection  with  that  Member 
State,  rule  on  a  matrimonial  property  regime  case  if  proceedings  would  be  impossible  or  cannot 
reasonably be brought or conducted in a third State. 

Article 8 
 Counterclaims 

The court seised pursuant to Articles 3, 4, 5, 6 or 7 before which proceedings are pending shall also 
have jurisdiction to rule on a counterclaim if it falls within the scope of this Regulation. 

A court shall be deemed to be seised: 

Article 9 
Seising a court 

(a) 

(b) 

on the date when the document instituting  the proceedings  or an  equivalent document is 
lodged  with  the  court,  provided  that  the  plaintiff  has  not  subsequently  failed  to  take  the 
steps he or she was required to take to have service effected on the defendant, or 

where the document has to be served before being lodged with the court, on the date on 
which  it  is  formally  drawn  up  or  registered  by  the  authority  responsible  for  service, 
provided  that  the  applicant  has  not  subsequently  failed  to  take  the  steps  he  or  she  was 
required to take to have the document lodged with the court. 

EN 

19 

   EN 

Article 10 
Examination as to jurisdiction 

Where a court of a Member State is seised of a matrimonial property regime case over which it has 
no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction. 

Article 11 
Examination as to admissibility 

Where  a  defendant  habitually  resident  in  a  Member  State  other  than  the  Member  State 
where  the  action  was  brought  does  not  enter  an  appearance,  the  court  with  jurisdiction 
shall  be  responsible  for  staying  the  proceedings  until  it  be  shown  that  the  defendant  has 
been able to receive the document instituting the proceedings or an equivalent document 
in time to defend himself or herself or that all necessary steps have been taken to this end. 

Article  19  of  Regulation  (EC)  No  1393/2007  of  the  European  Parliament  and  of  the 
Council  of  13 November  2007  on  the  service  in  the  Member  States  of  judicial  and 
extrajudicial documents in civil or commercial matters25 shall apply in place of paragraph 
1 of this article if the document instituting the proceedings or an equivalent document had 
to be sent from one Member State to another pursuant to that Regulation. 

Where  Regulation  (EC)  No  1393/2007  is  not  applicable,  Article  15  of  the  Hague 
Convention  of  15 November  1965  on  the  service  abroad  of  judicial  and  extrajudicial 
documents  in  civil  or  commercial  matters  shall  apply  if  the  document  instituting  the 
proceedings  or  an  equivalent  document  had  to  be  transmitted  abroad  pursuant  to  that 
Convention. 

Article 12 
Lis pendens 

Where proceedings involving the same cause of action and between the same parties are 
brought  before  courts  of  different  Member  States,  any  court  other  than  the  court  first 
seised shall of its own motion stay its proceedings until such time as the jurisdiction of the 
court first seised is established. 

In the cases referred to in paragraph 1 the first court seised shall establish its jurisdiction 
within six months, unless this proves impossible because of exceptional circumstances. At 
the request of any other court seised of the case, the court first seised shall inform it of the 
date on which it was seised and whether it has established its jurisdiction over the case or, 
failing that, inform it of the estimated time needed to establish its jurisdiction. 

If the jurisdiction of the court first seised is established, any court other than the court first 
seised shall decline jurisdiction in favour of that court.  

1. 

2. 

3. 

1. 

2. 

3. 

25 

OJ L 324, 10.12.2007, p. 79. 

EN 

20 

   EN 

                                                 
Article 13 
Related actions 

1. 

2. 

3. 

Where  related  actions  are  pending  before  courts  of  different  Member  States,  any  court 
other than the court first seised may stay its proceedings. 

Where these actions are pending at first instance, any court other than the court first seised 
may  also,  on  the  application  of  one  of  the  parties,  decline  jurisdiction  if  the  court  first 
seised  has  jurisdiction  over  the  actions  in  question  and  its  law  permits  the  consolidation 
thereof. 

For the purposes of this article, actions are deemed to be related where they are so closely 
connected  that  it  is  expedient  to  hear  and  determine  them  together  to  avoid  the  risk  of 
irreconcilable judgments resulting from separate proceedings. 

Article 14 
Provisional, including protective, measures 

Provisional,  including  protective,  measures  provided  for  by  the  law  of  a  Member  State  may  be 
requested  from  the  courts  of  that  State,  even  where,  under  this  Regulation,  the  courts  of  another 
Member State have jurisdiction as to the substance of the matter. 

Chapter III 

Applicable law 

Article 15 
Unity of the applicable law 

The law applicable to a matrimonial property regime under Article 16, 17 and 18 shall apply to all 
the couple's property. 

Article 16 
Choice of applicable law 

The spouses or future spouses may choose the law applicable to their matrimonial property regime, 
as long as it is one of the following laws:  

(a) 

(b) 

(c) 

the law of the State of the habitual common residence of the spouses or future spouses, or  

the law of the State of habitual residence of one of the spouses at the time this choice is 
made, or 

the law of the State of which one of the spouses or future spouses is a national at the time 
this choice is made. 

EN 

21 

   EN 

Article 17 
Establishing the applicable law where no choice is made 

1. 

If the spouses do not make a choice, the law applicable to the matrimonial property regime 
shall be: 

(a) 

(b) 

(c) 

the  law  of  the  State  of  the  spouses'  first  common  habitual  residence  after  their 
marriage or, failing that, 

the law of the State of the spouses' common nationality at the time of their marriage 
or, failing that, 

the law of the State with which the spouses jointly have the closest links, taking into 
account  all  the  circumstances,  in  particular  the  place  where  the  marriage  was 
celebrated.  

2. 

Paragraph 1(b) shall not apply if the spouses have more than one common nationality. 

Article 18 
Change of applicable law 

The spouses may, at any time during the marriage, make their matrimonial property regime subject 
to a law other than the one hitherto applicable. They may designate only one of the following laws:  

(a) 

the law of the State of habitual residence of one of the spouses at the time this choice is 
made; 

(b) 

the law of a State of which one of the spouses is a national at the time this choice is made. 

Unless  the  spouses  desire  otherwise,  a  change  of  the  law  applicable  to  the  matrimonial  property 
regime made during the marriage shall be effective only in the future. 

If the spouses choose to make this change of applicable law retrospective, the retrospective effect 
may not affect the validity of previous transactions entered into under the law applicable hitherto or 
the rights of third parties deriving from the law previously applicable. 

Article 19 
Formalities for choosing the applicable law 

1. The choice of applicable law shall be made in the way specified for the marriage contract, either 
by the law of the State chosen or by the law of the State in which the document is drawn up.  

2.  Notwithstanding  paragraph 1,  the  choice  must  at  least  be  made  expressly  in  a  document  dated 
and signed by both spouses.  

3. If the law of the Member State in which the spouses have their common habitual residence at the 
time  of  the  choice  referred  to  in  paragraph 1  provides  for  additional  formal  requirements  for  the 
marriage contract, these requirements must be complied with. 

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Article 20 
Law applicable to the form of marriage contract 

1. 

2. 

3. 

The  form  of  the  marriage  contract  shall  be  that  prescribed  by  the  law  applicable  to  the 
matrimonial property regime or by the law of the State where the contract is drawn up.  

Notwithstanding paragraph 1, the marriage contract must at least be set out in a document 
dated and signed by both spouses.  

If the law of the Member State in which the spouses have their common habitual residence 
at the time the marriage contract is concluded provides for additional formal requirements 
for that contract, these requirements must be complied with. 

Article 21 
Universal nature of the conflict-of-law rule 

Any law determined in accordance with the provisions of this Chapter shall apply even if it is not 
the law of a Member State. 

Article 22 
Overriding mandatory provisions 

The  provisions  of  this  Regulation  shall  be  without  prejudice  to  the  application  of  imperative 
provisions  the  upholding  of  which  is  regarded  as  crucial  by  a  Member  State  for  safeguarding  its 
public interests, such as its political, social or economic organisation, to such an extent that they are 
applicable to any situation falling within their scope, irrespective of the law otherwise applicable to 
the matrimonial property regime under this Regulation. 

Article 23 
Public policy 

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

Article 24 
Exclusion of renvoi 

Where  this  Regulation  provides  for  the  application  of  the  law  of  a  State,  it  means  the  rules  of 
substantive law in force in that State other than its rules of private international law. 

Article 25 
States with two or more legal systems — territorial conflicts of laws  

Where a State comprises several territorial units each of which has its own system of law or its own 
rules concerning matters governed by this Regulation:  

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(a) any reference to the law of that State shall be construed, for the purposes of determining the law 
applicable under this Regulation, as a reference to the law in force in the relevant territorial unit;  

(b)  any  reference  to  habitual  residence  in  that  State  shall  be  construed  as  a  reference  to  habitual 
residence in a territorial unit;  

(c) any reference to nationality shall refer to the territorial unit determined by the law of that State, 
or, in the absence of relevant rules, to the territorial unit chosen by the parties or, in absence of such 
a choice, to the territorial unit with which the spouse or spouses has or have the closest connection.  

Chapter IV 

Recognition, enforceability and enforcement 

SECTION 1 

DECISIONS 

Subsection 1 

Recognition 

Article 26 
Recognition of decisions 

1. 

2. 

3. 

A  decision  given  in  a  Member  State  shall  be  recognised  in  the  other  Member  States 
without any special procedure being required. 

Any  interested  party  who  raises  the  recognition  of  a  decision  as  the  principal  issue  in  a 
dispute may, in accordance with the procedures set out in Articles [38 to 56] of Regulation 
(EC) No 44/2001, apply for the decision to be recognised. 

If  the  outcome  of  the  proceedings  in  a  court  of  a  Member  State  depends  on  the 
determination  of  an  incidental  question  of  recognition,  that  court  shall  have  jurisdiction 
over that question. 

Article 27 
Grounds for non-recognition of decisions 

A decision shall not be recognised if: 

(a) 

such recognition is manifestly contrary to public policy in the Member State addressed; 

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(b) 

(c) 

(d) 

1. 

2. 

where  it  was  given  in  default  of  appearance,  if  the  defendant  was  not  served  with  the 
document  which  instituted  the  proceedings  or  with  an  equivalent  document  in  sufficient 
time and in such a way as to enable him or her to arrange for his or her defence, unless the 
defendant failed to commence proceedings to challenge the decision when it was possible 
for him or her to do so; 

it  is  irreconcilable  with  a  decision  given  in  a  matter  between  the  same  parties  in  the 
Member State addressed; 

it  is  irreconcilable  with  an  earlier  decision  given  in  another  Member  State  or  in  a  third 
State involving the same cause of action and between the same parties, provided that the 
earlier  decision  fulfils  the  conditions  necessary  for  its  recognition  in  the  Member  State 
addressed. 

Article 28 
Prohibition of review of jurisdiction of the court of origin 

The jurisdiction of the court of the Member State of origin may not be reviewed.  

The  public  policy  criterion  referred  to  in  Article  23  shall  not  apply  to  the  rules  on 
jurisdiction set out in Articles 3 to 8. 

Article 29 
No review as to substance 

Under no circumstances may a foreign decision be reviewed as to its substance. 

Article 30 
Stay of proceedings 

A court of a Member State in which recognition is sought of a decision given in another Member 
State may stay the proceedings if an ordinary appeal against the decision has been lodged. 

Subsection 2 

Enforcement 

Article 31 
Enforceability of decisions 

Decisions  given  in  a  Member  State  where  they  are  enforceable  shall  be  enforced  in  the  other 
Member States in accordance with Articles [38 to 56 and 58] of Regulation (EC) No 44/2001. 

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SECTION 2 

AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS 

Article 32 
Recognition of authentic instruments 

1. 

2. 

1. 

2. 

Authentic  instruments  drawn  up  in  a  Member  State  shall  be  recognised  in  the  other 
Member States, unless their validity is disputed in accordance with the applicable law, and 
provided such recognition is not contrary to public policy in the Member State addressed. 

The recognition of authentic instruments confers on them evidentiary effect with regard to 
their contents and a presumption of validity.  

Article 33 
Enforceability of authentic instruments 

Authentic instruments drawn up and enforceable in one Member State shall, on request, be 
declared enforceable in another Member State following the procedure set out in Articles 
[38 to 57] of Regulation (EC) No 44/2001.  

The court with which an appeal is lodged under Articles [43 and 44] of Regulation (EC) 
No 44/2001  may  refuse  or  revoke  a  declaration  of  enforceability  only  if  enforcement  of 
the instrument is manifestly contrary to public policy in the Member State addressed. 

Article 34 
Recognition and enforceability of court settlements 

Court  settlements  that  are  enforceable  in  the  Member  State  of  origin  shall  be  recognised  and 
declared enforceable in another Member State at the request of any interested party under the same 
conditions as authentic instruments. The court with which an appeal is lodged under Article [42 or 
44]  of  Regulation  (EC)  No 44/2001  may  refuse  or  revoke  a  declaration  of  enforceability  only  if 
enforcement  of  the  court  settlement  is  manifestly  contrary  to  public  policy  in  the  Member  State 
addressed. 

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Chapter V 

Effects in respect of third parties 

Article 35 
Effects in respect of third parties  

1. 

2. 

3. 

1. 

2. 

The effects of the matrimonial property regime on a legal relationship between a spouse 
and  a  third  party  are  governed  by  the  law  applicable  to  matrimonial  property  regimes 
under the terms of this Regulation. 

However,  the  law  of  a  Member  State  may  provide  that  the  law  applicable  to  the 
matrimonial  property  regime  may  not  be  relied  on  by  a  spouse  in  dealings  with  a  third 
party if one or other has their habitual residence in the territory of that Member State and 
the  conditions  of  disclosure  or  registration  provided  for  in  the  law  of  that  State  are  not 
satisfied,  unless  the  third  party  was  aware  of  or  ought  to  have  been  aware  of  the  law 
applicable to the matrimonial property regime. 

The law of the Member State in which immovable property is located may provide for a 
similar rule to that laid down in paragraph 2 in respect of the legal relationship between a 
spouse and a third party in respect of that property. 

Chapter VI 

General and final provisions 

Article 36 
Relations with existing international conventions 

This Regulation shall not affect the application of the bilateral or multilateral conventions 
to which one or more Member States are party at the time of adoption of this Regulation 
and  which  relate  to  the  subjects  covered  by  this  Regulation,  without  prejudice  to  the 
obligations of the Member States under Article 351 of the Treaty.  

Notwithstanding  paragraph  1,  this  Regulation  shall,  between  Member  States,  take 
precedence over conventions which relate to subjects governed by this Regulation and to 
which the Member States are party. 

Article 37 
Information made available to the public and the relevant authorities 

1. 

The Member States shall send the Commission, no later than ..., in the official language(s) 
they judge appropriate:  

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(a) 

(b) 

a  description  of  their  national  legislation  and  procedures  relating  to  the  law  on 
matrimonial property regimes, and the relevant texts;  

the  national  provisions  on  the  effects  in  respect  of  third  parties  referred  to  in 
Article 35(2) and (3). 

Member  States  shall  notify  the  Commission  of  any  subsequent  changes  in  this 
information.  

The Commission shall make all information communicated in accordance with paragraphs 
1  and  2  publicly  available  by  appropriate  means,  in  particular  through  the  multilingual 
internet site of the European Judicial Network in civil and commercial matters.  

Article 38 
Review clause 

No  later  than  [five  years  after  the  date  of  application...],  and  every  five  years  thereafter, 
the Commission shall present to the European Parliament, the Council and the European 
Economic  and  Social  Committee  a  report  on  the  application  of  this  Regulation.  Where 
necessary, the report shall be accompanied by proposals to amend this Regulation. 

To  that  end,  the  participating  Member  States  shall  communicate  to  the  Commission 
relevant information on the application of this Regulation by their courts. 

Article 39 
Transitional provisions 

Chapters II and IV of this Regulation shall apply to legal proceedings instituted, authentic 
instruments received, court settlements concluded and decisions given after the date of its 
application. 

However, if the proceedings in the Member State of origin were instituted before the date 
of  application  of  this  Regulation,  decisions  given  after  that  date  shall  be  recognised  and 
enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply 
with those set out in Chapter II. 

Chapter III shall apply only to spouses who marry or who specify the law applicable to the 
matrimonial property regime after the date of application of this Regulation. 

Article 40 
Entry into force 

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

This Regulation shall apply from [one year after the date of its entry into force]. 

2. 

3. 

1. 

2. 

1. 

2. 

3. 

1. 

2. 

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This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  the  Member  States  in 
accordance with the Treaties. 

Done at […] 

For the Council 
The President  

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