COMMISSION STAFF WORKING DOCUMENT SUMMARY OF THE IMPACT ASSESSMENT   Accompanying document to the   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS  Bringing legal clarity to property rights for international couples   Proposal for a   Council Regulation  on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes   and the   Proposal for a   Council Regulation   on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships   {COM(2011) 125 final} {COM(2011) 126 final} {COM(2011) 127 final} {SEC(2011) 327 final}
Date: 2011-03-16
Institutions: European Commission
Subjects: approximation of laws, civil law, civil register, economic system, enforcement of ruling, family law, heritage protection, judicial cooperation, matrimonial law

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.3.2011 
SEC(2011) 328 final 

COMMISSION STAFF WORKING DOCUMENT 

SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying document to the 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Bringing legal clarity to property rights for international couples 

Proposal for a  

COUNCIL REGULATION 

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

and the 

Proposal for a  

COUNCIL REGULATION  

on jurisdiction, applicable law and the recognition and enforcement of decisions 
regarding the property consequences of registered partnerships 

{COM(2011) 125 final} 
{COM(2011) 126 final} 
{COM(2011) 127 final} 
{SEC(2011) 327 final} 

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1. 

PROCEDURAL ISSUES AND THE CONSULTATION OF INTERESTED PARTIES 

Preparing  the  future  EU  initiatives  in  the  field  of  property  of  couples  lies  within  the 
framework  of  the  2000  Programme  of  Mutual  Recognition  of  decisions  in  civil  and 
commercial matters. 

In  2003  the  Commission  commissioned  a  study  on  matrimonial  property  regimes  and  the 
property of unmarried couples in private international law and internal law, which highlighted 
the existence of problems. In 2006 the Commission adopted a Green Paper on conflict of laws 
in  matters  concerning  matrimonial  property  regimes1,  including  the  question  of  jurisdiction 
and mutual recognition.  

The Commission set up an expert group to assist it in its work on future legislative proposals, 
composed of experts acting independently of the Member States (hereafter "MS"). A public 
hearing was organised on 28 September 2009: 99 participants, from the MS, the expert group 
as  well  as  academics,  lawyers,  notaries  and  member  of  civil  society  attended  to  discuss  the 
usefulness  of  a  European  instrument  on  matrimonial  and  patrimonial  property  regimes  for 
international couples.  

Finally,  the  Stockholm  Programme  called  for  the  principle  of  mutual  recognition  to  "be 
extended  to  fields  that  are  not  yet  covered  but  essential  to  every  day  life,  e.g.  matrimonial 
property rights and the property consequences of the separation of couples". 

The  present  report  is  based  on  the  findings  of  an  external  study  commissioned  by  the 
Commission to assist her in the impact assessment report. 

2. 

PROBLEM DEFINITION 

More  and  more  citizens  in  EU  move  across  national  borders  and  this  leads  to  an  increased 
number  of  international  couples  or  couples  with  an  international  dimension:  spouses  of 
different nationalities, couples living in a MS of which they are not nationals, owning assets 
in  different  MS  and  sometimes  they  divorce  or  die  in  a  country  other  than  the  one  of  their 
origin.  The  problem  is  that  it  is  very  difficult  for  people  to  know  which  courts  have 
jurisdiction,  and  which  laws  are  applicable,  to  their  personal  situation  and  the  situation  of 
their property. As a result, they face unintended, and disadvantageous, consequences not only 
in  the  daily  management  of  their  assets,  but  also  when  the  couple  separates,  or  when  a 
member of the couple dies. 

Although EU rules exist on jurisdiction and applicable law in civil and commercial law, and 
in some areas of family law, no such laws currently exist for matrimonial property regimes, 
nor  for  property  rights  of  unmarried  couples.  The  subject  is  therefore  governed  by  national 
law and international agreements between MS.  

The causes of current problems for couples in registered partnerships are basically the same as 
for  married  couples.  However,  there  are  some  important  additional  challenges  because  the 
concept of registered partnerships in itself exists only in 14 MS, not all MS have substantive 
laws on this matter, and even fewer have adopted jurisdiction rules and conflict of law rules.  

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COM(2006)400 final  

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The  proposals  cover  respectively  the  married  couples  and  the  registered  partnerships,  "de 
facto" unions are not covered. 

Size of the problem 

In  2007  there  were  2 400 000  new  marriages  in  the  EU  of  which  approximately  300 000 
(13%)  were  international  and  there  were  1 047 427  divorces,  of  which  13%  also  had  an 
international  element.  Moreover,  in  the  same  year  approx.  2.4  million  marriages  were 
dissolved through death, of which approximately 390 000 were estimated to be international. 
All in all, in 2007 more than 430 000 international couples split through divorce or death, and 
in all these cases matrimonial property had to be divided up.  

In 2007 there were approximately 211 000 registered partnerships in the  EU,  of  which  over 
41 000  had  an  ‘international  dimension’  with  regard  to  their  property  (total  of  international 
registered partnerships, registered partnerships living abroad or having property abroad). 

3. 

OBJECTIVES 

The overall objective of the Proposals is to contribute to the creation of a genuine European 
area  of  civil  justice  in  the  field  of  property  regimes  for  married  couples  and  registered 
partnerships and provide common rules setting out which courts have jurisdiction, and which 
law should be applied, to property rights of couples with an international dimension. 

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The general and specific objectives are summarised in the following table: 

General objective 

Specific objectives 

To  remove  the  remaining  restrictions 
on  citizens  exercising  their  rights  in 
the  European  judicial  area  through 
the extension of mutual recognition to 
matrimonial  property  rights  and  the 
property 
the 
consequences 
separation of couples. 

of 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

To  prevent  parallel  proceedings  and  of  the  application  of  different 
substantive laws to the property of a married or unmarried couple. 

To  ensure  spouses  and  partners  are  able  to  choose,  as  far  as  is 
appropriate, the rules and legal provisions applicable to their situation. 

To  facilitate  the  recognition  and  enforcement  of  decisions  relating  to 
international property regimes of married and unmarried couples. 

To  make  it  possible  for  a  couple  to  bring  all  legal  matters  relating  to 
their  case  (as  a  result  of  separation  or  death  which  brings  about  the 
liquidation of the matrimonial regime) before the same court. 

To ensure that spouses and partners know, where they have not chosen 
an  applicable  law,  which  law  will  be  applicable  in  the  event  of 
liquidation of the property regime. 

To  ensure  compatibility  with  other  proposed EU  rules  (e.g.  in relation 
to  successions  and  wills  and,  for  married  couples,  applicable  law  in 
divorce proceedings) 

To  increase  access  to  information  on  matrimonial  and  patrimonial 
property regimes 

4. 

POLICY OPTIONS 

4.1. 

Description of the policy options 

The following policy options have been identified: 

Policy Option 1: Status quo - no new EU action-. 

Policy Option 2: Provision of targeted information to raise citizens’ awareness that patrimonial property regimes may not be 
the same in other MS –information to be distributed to couples that are about to get married or to register a partnership (e.g. 
leaflet with some generic information )-. 

Policy Option 3: Harmonisation of jurisdiction rules and introduction of rules on automatic recognition and enforcement of 
judgments –EU legislative action in term of Regulation(s) establishing harmonised jurisdiction rules (jurisdiction would be 
determined on the basis of connecting factors), and rules on automatic recognition and enforcement of judgments and other 
decisions-. 

Policy Option 4: Harmonisation of conflict of law rules – EU legislative action would provide rules to determine which law is 
applicable; a choice of law would be permitted; if no choice of law was made, common connecting factors would determine 
which law apply -. 

Policy Option 5: Uniform optional European proforma for marriage contracts - a standard marriage contract, common to EU 
MS,  could  be  concluded  by  EU  citizens.  Some  parts  of  these  contracts  would  need  to  be  adapted  to  the  specifics  of  the 
national situation -. 

Policy  Option  6:  Harmonisation  of  conflict  of  law  rules  and  jurisdiction  rules,  and  introduction  of  rules  on  automatic 
recognition and enforcement of judgments - this option would combine policy options 3 and 4.  

Policy  Option  7:  Provision  of  information  for  third  parties  on  the  existence  of  property  regimes  of  married  couples  and 
registered partnerships – different possibilities have been identified to address problems of identifying property relationships 
of married couples or couples in registered partnerships abroad -. 

4.2. 

Comparison of the options 

Policy  Option  1:  Status  quo.  This  option  would  not  meet  the  objectives  because  MS  are 
unlikely  to  streamline  their  national  rules.  If  they  may  make  changes  to  their  national  legal 

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systems on their own initiatives, variations between those systems are likely to remain. On the 
contrary, the existing problems may likely become aggravated in regards with the increasing 
mobility of citizens. Fundamental rights: without being a violation of the right to property as 
such, the complexity of the legal framework could have an impact on the actual enjoyment of 
property. Social effects: The problems experienced by the weaker party in the couple during 
separation proceedings are also likely to remain. Financial costs: no. Economic effects: with 
increasing  numbers  of  international  complicated  cases,  time  delays  and  costs,  including 
reduction of the value of assets will become worse than at present. 

Policy Option 2: Targeted provision of information to raise citizens’ awareness that the 
property regime may not be the same in other Member States and that they can register 
their regime. This option would contribute to prevent in a very limited extent the occurrence 
of  parallel  proceedings  and  the  application  of  different  substantive  laws.  Fundamental 
rights:  positive  impact  on  the  actual  enjoyment  of  property.  Social  effects:  minor 
improvements  compared  to  the  present  situation.  Financial  costs:  costs  to  produce  the 
information  leaflets  estimated  at  approximately  2  million  euro  per  year.  Economic  effects: 
savings would be low. 

Policy  option  3:  Harmonisation  of  jurisdiction  rules  and  introduction  of  rules  on 
automatic  recognition  and  enforcement  of  judgments,  decisions  and  deeds.  This  option 
would  have  a  limited  positive  impact,  by  avoiding  parallel  court  proceedings,  and  by 
facilitating  the  recognition  of  decisions.  However,  the  lack  of  certainty  on  the  question  to 
determine  which  law  is  applicable  would  remain.  Fundamental  rights:  positive  impact  on 
the actual enjoyment of property. Social impacts: costs could be saved by preventing parallel 
proceedings,  and  by  facilitating  recognition  and  enforcement  of  decisions.  Financial  costs: 
low (for the introduction of new jurisdiction rules). Economic impacts: cost savings for MS 
would be low. 

Policy option 4: Harmonisation of conflict of law rules. This option would provide some 
advantages  compared  to  the  current  situation.  E.g.,  if  several  jurisdictions  could  still  handle 
the same case, they should apply the same substantive law on property regimes (because they 
would apply the same  conflict  of  law  rules). Besides, by introducing harmonised rules on a 
limited choice of law for the couples, this would increase certainty as to what law would be 
applied.  Fundamental  rights:  positive  impact  on  the  actual  enjoyment  of  property.  Social 
effects: costs  reductions  in  terms of reduced legal fees. The current situation  would be also 
improved  by  eliminating  the  reason  for  rush  to  court  and  by  avoiding  legal  professionals 
having  to  look  into  other  countries’  conflict  of  law  rules  to  know  which  law  is  applicable. 
Financial costs: very low for administration. Economic effects: costs savings would be low. 

Policy  Option  5:  Uniform  optional  European  proforma  for  a  marriage  contract.  This 
option (developed only for married couples) would ensure that where couples have drawn up 
a  marriage  contract,  this  contract  (and  consequently  the  rules  chosen  by  spouses)  would  be 
recognised  throughout  the  EU.  Furthermore,  couples  could  choose  the  law  to  facilitate 
proceedings linked with divorce or successions. Social impacts: increasing of legal certainty. 
Financial  costs:  costs  for  administrative  work  to  produce  the  necessary  legislation  at  EU 
level. Training of legal professionals in the MS also would be required. Economic effects: it 
would lead to some limited cost savings. Nevertheless, a vast majority of experts consider that 
such a proposal is immature, because of big differences that still exists between legislation of 
MS. 

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Policy  Option  6:  Harmonisation  of  conflict  of  law  rules  and  jurisdiction  rules,  and 
introduction  of  rules  on  automatic  recognition  and  enforcement  of  judgments. 
Harmonised  conflict  of  law  rules  would  ensure  that  the  same  law  is  applied  throughout  the 
EU  to  the  same  case  (it  would  prevent  the  forum  shopping  and  ensure  choice  of  applicable 
rules). Besides, harmonised conflict of jurisdiction rules would greatly reduce the possibility 
of  parallel  proceedings,  and  rules  on  recognition  and  enforcement  would  facilitate  the  easy 
circulation of decisions and acts. Social impacts: reduction of costs for citizen (i.e. reduced 
legal  fees,  in  particular  when  a  choice  of  law  is  made).  Financial  costs:  costs  for 
administrative  work  to  produce  the  necessary  legislation  at  EU  level.  Training  of  legal 
professionals in the MS also would be required. Economic effects: costs saving would be the 
most important by comparison with others policy options. 

For  the  Policy  Option  7,  "Provision  of  information  on  property  regimes  of  married 
couples and registered partnerships", several sub-options have been envisaged. : 

–  Creation of a webpage on existing registers of property regimes and national rules, 

–  Creation  of  a  database/knowledge  management  system  on  existing  registers  of  property 

regimes and national rules, 

–  Commission Recommendation on the establishment of interconnected national registers of 

property regimes and the organisation of information campaigns, 

–  Compulsory establishment of interconnected national registers of property regimes.  

All these sub-options tend to increase access to information on property regimes. On the basis 
of  the  assessments  made  in  terms  of  the  achievement  of  objectives,  and  cost  estimations 
made, the preferred option on information on property regimes is the creation of a webpage 
on  existing  registers  of  matrimonial  property  regimes  and  national  rules.  Although  some  of 
the other policy options achieve the objectives to a slightly higher extent, the predictable costs 
for those outweigh the limited additional benefits. 

4.3. 

The preferred option 

This option would involve EU level action in the form of: 

–  the adoption of a package of two Regulations, one dealing with married couples, the other 
with couples in registered partnerships, on the harmonisation of conflict of law rules and 
jurisdiction  rules  and  the  introduction  of  rules  on  automatic  recognition  and  the 
enforcement of judgments, other acts; and, 

–  the  creation  of  a  webpage  on  existing  registers  of  matrimonial  property  regimes  and 

national rules. 

4.4. 

The potential scale and nature of impacts of the preferred option 

This option would address the specific objectives identified above better that any other of the 
options. 

The harmonised jurisdiction rules (including a lis pendens provision in combination with rules 
on recognition and enforcement of judgments and acts) would lead to very few possibilities 
for  parallel  proceedings.  Moreover,  the  harmonised  conflict  of  law  rules  would  help  in 

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preventing the occurrence of forum shopping. It also ensures that the same law is applied to 
the same case in EU MS. The introduction of rules on a limited choice of law for the spouses 
would increase legal certainty and it would also give them a limited freedom to determine the 
applicable to their assets, while it would guarantee the protections of third parties' interests. 

Problems in relation to recognition of judgments, decisions and deeds are likely to be almost 
completely  eliminated.  This  includes  important  progress  in  terms  of  cost  saving,  delay  for 
recognition of decisions, and by avoiding to go to courts in different MS. 

Rules  on  jurisdiction  with  regard  to  the  liquidation  of  property  regimes  would  extend  the 
jurisdiction of the court dealing with a divorce or with a succession to matters also relating to 
the liquidation of the property regime. This would give greater legal certainty to citizens as 
the jurisdiction handling the divorce or succession would also deal with the liquidation of the 
property regime.  

Problems  concerning  couples  who  have  not  made  a  choice  of  law  would  also  be  addressed 
through  a  system  based  on  a  hierarchy  of  connecting  factors  that  would  be  applicable  to 
property regimes and would be common to all MS. Furthermore, the principle of immutability 
and a unitary system would ensure that the law applicable to the matrimonial property regime 
does not change when the couple move to another MS and apply to all assets. 

Moreover,  an  increased  access  to  information  on  property  regimes  in  other  MS  would  be 
provided  through  the  creation  of  a  webpage.  It  would  provide  contact  details  on  existing 
registers  and  would  also  facilitate  access  to  information  concerning  national  legislation  on 
property regimes. Overall the preferred option would increase the likelihood that the rights of 
each  spouse  or  partner,  private  and  public  creditors  etc.  would  be  respected  in  an  efficient 
way.  The  option  would  also  lead  to  an  increased  likelihood  that  the  initial  choices  of  the 
spouses  would  not  be  affected  by  any  decision  to  move  to,  or  acquire  property,  in  another 
country. 

4.5. 

The costs of the preferred option 

At  EU  level  this  preferred  policy  option  would  lead  to  the  costs  for  administrative  work  to 
produce the necessary legislation. At national level costs would occur while establishing the 
necessary  additional  national  rules  (e.g.  regarding  the  jurisdiction  of  applicable  law  rules), 
also  in  training  of  legal  professionals  (e.g.  lawyers,  judges,  notaries,  solicitors)  and  judicial 
cooperation. Both – EU and the MS – would have additional costs for information campaigns 
to present the new legislation.  

Overall  the  preferred  policy  option  could  lead  to  cost  reductions  of  up  to  an  estimated 
maximum third of the costs currently pertaining due to the problems addressed, i.e. approx 0.4 
billion  euro  (costs  can  be  evaluated  to  1.1  billion  euro  each  year).  These  cost  reductions 
would be particularly significant for international marriages and registered partnerships, and 
more specifically regarding issues related to problems occurring at the moment of separation 
or death. 

The implications of simplifying the law (and reducing legal costs) would be a reduction in the 
fees for legal professionals. However, this would be offset by potential increases in work to 
assist those drawing up marriage contracts, or partnership contracts, and in improvements in 
the quality of work due to reductions in legal uncertainty. 

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The preferred option would be tax neutral, in so far as the package of two Regulations would 
not result in any changes to the MS' national legislation on taxation. 

4.6. 

EU added value 

The  main  problems  are  conflict  between  national  rules  on  applicable  law,  jurisdiction,  and 
problems  of  recognition  and  enforcement  of  decisions  and  acts  between  MS.  As  this  is  a 
cross-border problem, it can only be solved at a European level. If MS make changes to their 
national  legal  systems  on  their  own  initiative,  it  is  unlikely  that  these  will  harmonise  the 
country's rules with those of other EU MS. EU level action is necessary in view of the nature 
and scale of the problem, and would produce clear benefits compared to action at the level of 
MS. Existing EU legislation on jurisdiction and recognition of judgments in other fields has 
proved to be effective and useful for citizens. 

The preferred option will bring clear benefits to EU citizens who are part of an "international" 
couple, by setting out clear rules on how their property should be dealt with upon separation 
or death. The problems addressed by the preferred policy option are in part a consequence of 
the internal market and free movement of people. If the current problems are not solved, trust 
in the EU internal market and the EU area of freedom, security and justice without internal 
borders  may  be  damaged.  Indeed,  the  liquidation  of  property  regimes  with  international 
elements is both more costly and time-consuming  for citizens than the liquidation of purely 
national property regimes. By ensuring more efficient handling of the liquidation of property 
regimes with international elements, the preferred option would promote trust in the operation 
of  the  internal  market  and  simplify  matters  for  citizens.  The  proposals  would  contribute  to 
reaching  the  objective  of  the  EU  to  make  the  lives  of  EU  citizens  easier,  without  any 
discrimination between purely national couples and couples with an international dimension. 

Overall  the  estimated  economic  benefits  of  the  preferred  option  are  substantial,  and  should 
contribute to improving the situation of these couples significantly. Only such EU legislative 
initiatives could provide solutions to couples with cross-border dimensions, and improve the 
situation  of  European  families  who  take  advantage  of  a  genuine  European  area  without 
internal borders. 

Nevertheless,  the  initiatives  respect  the  principle  of  subsidiarity:  as  it  is  outside  the  EU's 
competence to harmonise the substantive law, the future instruments would not affect national 
rules  of  MS,  and  would  not  imply  harmonisation  of  substantive  laws  that  apply  to  property 
rights between spouses and partners.  

5. 

MONITORING AND EVALUATION  

In order to monitor the effective implementation of the Regulations as well as the success of 
the  webpage,  regular  evaluation  and  reporting  by  the  Commission  will  take  place.  The 
Commission  will  prepare  evaluation  reports  on  the  application  of  the  Regulations.  The 
Commission will also monitor the utilisation of the webpage to see how much it is being used 
by citizens and third parties to find information, and how it could be improved. Furthermore, 
the European Judicial Network for civil and commercial matters could play an important role 
to strengthen the cooperation between MS when applying the Regulations. 

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