European Parliament legislative resolution of 10 September 2013 on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011)0126 — C7-0093/2011 — 2011/0059(CNS))
Date: 2013-09-10
Institutions: Committee on Civil Liberties, Justice and Home Affairs, Committee on Legal Affairs, Committee on Women’s Rights and Gender Equality, European Parliament
Subjects: consultation procedure, enforcement of ruling, judicial cooperation in civil matters in the EU, jurisdiction, marriage, matrimonial law, mutual recognition principle




C_2016093EN.01025101.xml










9.3.2016   


EN


Official Journal of the European Union


C 93/251





P7_TA(2013)0338
Matrimonial property regimes *
European Parliament legislative resolution of 10 September 2013 on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011)0126 — C7-0093/2011 — 2011/0059(CNS))
(Special legislative procedure — consultation)
(2016/C 093/33)

The European Parliament,







—


having regard to the Commission proposal to the Council (COM(2011)0126),










—


having regard to Article 81(3) of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0093/2011),










—


having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Italian Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,










—


having regard to Rule 55 of its Rules of Procedure,










—


having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women’s Rights and Gender Equality (A7-0253/2013),












1.


Approves the Commission proposal as amended;












2.


Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union;












3.


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












4.


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












5.


Instructs its President to forward its position to the Council, the Commission and the national parliaments.





Amendment 1


Proposal for a regulation


Recital 10








Text proposed by the Commission




Amendment











(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.












(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. 
Rather, it adopts a neutral attitude towards that concept. This Regulation does not affect the definition of the concept of marriage in the national law of the Member States.











Amendment 2


Proposal for a regulation


Recital 11








Text proposed by the Commission




Amendment











(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.












(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 divorce
 or the death of one of the spouses.









(Corresponds to recital 9 in Regulation (EU) No 650/2012.)

Amendment 3


Proposal for a regulation


Recital 11 a (new)








Text proposed by the Commission




Amendment





 










(11a)






This Regulation should not, however, apply to areas of civil law concerning matters other than matrimonial property regimes. For reasons of clarity, therefore, a number of questions which could be seen as having a link with matters of matrimonial property regimes should be explicitly excluded from the scope of this Regulation.











(Corresponds to recital 11 in Regulation (EU) No 650/2012.)


Amendment 4


Proposal for a regulation


Recital 12








Text proposed by the Commission




Amendment











(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 obligations, 
they
 should be excluded from the scope of this Regulation, as should issues relating to 
the validity and 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)
.












(12)


Maintenance obligations between spouses
, which
 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 obligations, should be excluded from the scope of this Regulation, as should issues relating to 
legal succession in the event of death
 covered by Regulation 
(EU)
 No 
650/2012
 of the European Parliament and 
of the
 Council 
of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

 (1).









Amendment 5


Proposal for a regulation


Recital 13








Text proposed by the Commission




Amendment











(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. 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.














(13)




This Regulation — like Regulation (EU) No 650/2012 — should not affect the limited number (‘numerus clausus’) of
 rights in rem 
known in
 the national law of 
some
 Member States
. A Member State should not be required to recognise a right in rem relating to property located in that Member State if the right in rem in question is not known in its law.











(Corresponds in part to recital 15 in Regulation (EU) No 650/2012.)


Amendment 6


Proposal for a regulation


Recital 13 a (new)








Text proposed by the Commission




Amendment





 










(13a)






However, in order to allow the beneficiaries to enjoy in another Member State the rights which have been created or transferred to them, for example in the context of a dispute concerning a matrimonial property regime, this Regulation should provide for the adaptation of an unknown right in rem to the closest equivalent right in rem under the law of that other Member State. In the context of such an adaptation, account should be taken of the aims and the interests pursued by the specific right in rem and the effects attached to it. For the purposes of determining the closest equivalent national right in rem, the authorities or competent persons of the State whose law applies to the matrimonial property regime may be contacted for further information on the nature and the effects of the right. To that end, the existing networks in the area of judicial cooperation in civil and commercial matters could be used as well as any other available means facilitating the understanding of foreign law.











(Corresponds to recital 16 in Regulation (EU) No 650/2012.)


Amendment 7


Proposal for a regulation


Recital 13 b (new)








Text proposed by the Commission




Amendment





 










(13b)






The requirements for the recording in a register of a right in immovable or movable property should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept (for immovable property, the lex rei sitae) which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information.











(Corresponds in part to recital 18 in Regulation (EU) No 650/2012.)


Amendment 8


Proposal for a regulation


Recital 13 c (new)








Text proposed by the Commission




Amendment





 










(13c)






The effects of the recording of a right in a register should also be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept which determines whether the recording is, for instance, declaratory or constitutive in effect. Thus where, for example, the acquisition of a right in immovable property requires a recording in a register under the law of the Member State in which the register is kept in order to ensure the erga omnes effect of registers or to protect legal transactions, the moment of such acquisition should be governed by the law of that Member State.











(Corresponds to recital 19 in Regulation (EU) No 650/2012.)


Amendment 9


Proposal for a regulation


Recital 13 d (new)








Text proposed by the Commission




Amendment





 










(13d)






The term ‘matrimonial property regime’, which determines the scope of this Regulation, should cover all rules concerning property relationships between spouses and in respect of third parties arising from their marriage and after its termination. These include not only the compulsory provisions of the applicable law but also any optional arrangements which the spouses may have agreed in accordance with the applicable law.











Amendment 10


Proposal for a regulation


Recital 13 e (new)








Text proposed by the Commission




Amendment





 










(13e)






Like Regulation (EU) No 650/2012, this Regulation should respect the different systems for dealing with property-regime issues applied in the Member States. For the purposes of this Regulation, the term ‘court’ should therefore be given a broad meaning so as to cover not only courts in the true sense of the word, exercising judicial functions, but also the notaries or registry offices in some Member States who or which, in certain matters of property regimes, exercise judicial functions like courts, and the notaries and legal professionals who, in some Member States, exercise judicial functions in a given property-regime matter by delegation of power by a court. All courts as defined in this Regulation should be bound by the rules of jurisdiction set out in this Regulation. Conversely, the term ‘court’ should not cover non-judicial authorities of a Member State empowered under national law to deal with property regimes, such as the notaries in most Member States where, as is usually the case, they are not exercising judicial functions.











(Corresponds to recital 20 in Regulation (EU) No 650/2012.)


Amendment 11


Proposal for a regulation


Recital 14








Text proposed by the Commission




Amendment











(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 1347/2000.












(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 1347/2000
, if the jurisdiction of the courts concerned has been expressly or in some other manner recognised by the spouses
.









Amendment 12


Proposal for a regulation


Recital 16








Text proposed by the Commission




Amendment











(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
.












(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. 
This requires
 an agreement between the spouses which may be concluded
, at the latest, until the matter is put before the court and subsequently as provided for by the lex fori
.









Amendment 13


Proposal for a regulation


Recital 17








Text proposed by the Commission




Amendment











(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
.












(17)


This Regulation must protect 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, 
in accordance with a set of criteria, listed in order of precedence, designed to ensure the existence of a close link between the spouses and the Member State whose courts have jurisdiction
.









Amendment 14


Proposal for a regulation


Recital 17 a (new)








Text proposed by the Commission




Amendment





 










(17a)






In order to remedy, in particular, situations of denial of justice, this Regulation should provide a forum necessitatis allowing a court of a Member State, on an exceptional basis, to rule on a matrimonial property case which is closely connected with a third State. Such an exceptional basis may be deemed to exist when proceedings prove impossible in the third State in question, for example because of civil war, or when a beneficiary cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on forum necessitatis should, however, be exercised only if the matrimonial property case has a sufficient connection with the Member State of the court seised.











(Corresponds to recital 31 in Regulation (EU) No 650/2012.)


Amendment 15


Proposal for a regulation


Recital 21








Text proposed by the Commission




Amendment











(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.












(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 common habitual residence of the spouses at the time of marriage or
 the first common habitual residence of the spouses after marriage should constitute the first criterion, ahead of the spouses' common nationality at the time of their marriage. If neither of those criteria applies, 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, it being made clear that those links are to be considered as they were at the time the marriage was entered into.









Amendment 16


Proposal for a regulation


Recital 22 a (new)








Text proposed by the Commission




Amendment





 










(22a)






For the purposes of the application of this Regulation, i.e. where it refers to nationality as a criterion for the application of the law of a State, the question of how to deal with cases of plural nationality and whether a person is to be regarded as a national of a State should be left to national law, or where appropriate also to international agreements, in full observance of the general principles of the European Union.











Amendment 17


Proposal for a regulation


Recital 24








Text proposed by the Commission




Amendment











(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.














(24)


Given the importance of choosing the law applicable to the matrimonial property regime, this Regulation must contain some guarantees to ensure that spouses or prospective spouses are aware of the consequences of their choice. 
The agreement establishing

that choice should at least be in writing and dated and signed by the couple. 
The choice should be made in the form prescribed by the law applicable to the matrimonial property regime or the law of the State where the agreement has been concluded.











Amendment 18


Proposal for a regulation


Recital 24 a (new)








Text proposed by the Commission




Amendment





 










(24a)






To take account of certain rules of the Member States, in particular those for protection of the family home and for assigning rights of use in relations between the spouses, this Regulation should not prevent the application of overriding mandatory rules by the court before which a matter is brought, and should therefore allow a Member State to set aside the application of a foreign law in favour of its own. For this purpose ‘overriding mandatory rules’ should refer to imperative provisions, the upholding of which is regarded as crucial by a Member State for safeguarding its public interests, particularly its political, social or economic organisation. In order, for example, to protect the family home, the Member State where the home is located should be permitted to apply its own law, without prejudice to the transaction protection provisions applicable in the Member State concerned, whose precedence is guaranteed by Article 35.











Amendment 19


Proposal for a regulation


Recital 27








Text proposed by the Commission




Amendment











(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
.












(27)


Since mutual recognition of decisions rendered in the Member States 
in matrimonial property cases
 is one of the objectives of this Regulation, this Regulation must lay down rules on the recognition
, enforceability
 and enforcement of decisions on the basis of 
other legal instruments of the Union in the field of judicial cooperation in civil matters
.









Amendment 20


Proposal for a regulation


Recital 28








Text proposed by the Commission




Amendment











(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.














(28)


In order to take into account the different 
systems for
 dealing with matrimonial property 
cases
 in the Member States, this Regulation 
should
 guarantee the 
acceptance
 and 
enforceability in all Member States
 of authentic instruments 
in matrimonial property matters
.









(Corresponds to recital 60 in Regulation (EU) No 650/2012.)


Amendment 21


Proposal for a regulation


Recital 28 a (new)








Text proposed by the Commission




Amendment





 










(28a)






In terms of the recognition, enforceability and enforcement of judicial decisions and of the acceptance and enforceability of authentic instruments and the enforceability of court settlements, this Regulation should therefore lay down rules on the basis of, in particular, Regulation (EU) No 650/2012.











Amendment 22


Proposal for a regulation


Recital 29








Text proposed by the Commission




Amendment











(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
.












(29)


The law applicable to matrimonial property regimes 
under this Regulation
 must govern the legal relationship between a spouse and a third party
. However,
 in the interests of the third party's protection
, neither of the spouses should be able to invoke that law in a legal relationship between one of the spouses and a third party if the spouse who has a legal relationship with the third party, and the third party, are habitually resident in the same State, which is not the State whose law is applicable to the matrimonial property. Exceptions should apply if the third party does not merit protection, in other words if he or she
 was aware of, or ought to have been aware of, the law applicable 
or if the requirements applicable to registration or disclosure in the State were complied with
.









Amendment 23


Proposal for a regulation


Recital 30 a (new)








Text proposed by the Commission




Amendment





 










(30a)






In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission with regard to the establishment and subsequent amendment of the attestations and forms pertaining to the declaration of enforceability of decisions, court settlements and authentic instruments. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

 (2)

.











(Corresponds to recital 78 in Regulation (EU) No 650/2012.)


Amendment 24


Proposal for a regulation


Recital 30 b (new)








Text proposed by the Commission




Amendment





 










(30b)






The advisory procedure should be used for the adoption of implementing acts establishing and subsequently amending the attestations and forms provided for in this Regulation in accordance with the procedure laid down in Article 4 of Regulation (EU) No 182/2011.











(Corresponds to recital 79 in Regulation (EU) No 650/2012.)


Amendment 25


Proposal for a regulation


Recital 32








Text proposed by the Commission




Amendment











(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 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.












(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, 
20,
 21
, 23
 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, 
equality before the law,
 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 those rights and principles.









(Corresponds in part to recital 81 in Regulation (EU) No 650/2012.)


Amendment 26


Proposal for a regulation


Article 1 — paragraph 3 — point a








Text proposed by the Commission




Amendment











(a)


the capacity of spouses,












(a)


the 
general
 capacity of spouses,









Amendment 27


Proposal for a regulation


Article 1 — paragraph 3 — point a a (new)








Text proposed by the Commission




Amendment





 










(aa)






the existence, validity or recognition of a marriage,











Amendment 28


Proposal for a regulation


Article 1 — paragraph 3 — point c








Text proposed by the Commission




Amendment













(c)






gifts between spouses,










deleted







Amendment 29


Proposal for a regulation


Article 1 — paragraph 3 — point d








Text proposed by the Commission




Amendment











(d)




the
 succession 
rights of a
 surviving spouse,












(d)




issues relating to
 succession 
due to death with reference to the
 surviving spouse,









Amendment 30


Proposal for a regulation


Article 1 — paragraph 3 — point e








Text proposed by the Commission




Amendment











(e)




companies set up between spouses,














(e)




questions governed by the law of companies and other bodies, corporate or unincorporated,











(Corresponds to Article 1, point (h), of Regulation (EU) No 650/2012.)


Amendment 31


Proposal for a regulation


Article 1 — paragraph 3 — point f








Text proposed by the Commission




Amendment











(f)


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














(f)


the nature of rights in rem,









(Corresponds to Article 1, point (k), of Regulation (EU) No 650/2012.)


Amendment 32


Proposal for a regulation


Article 1 — paragraph 3 — point f a (new)








Text proposed by the Commission




Amendment





 










(fa)






any recording in a register of rights in movable or immovable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register, and











(Corresponds to Article 1, point (l), of Regulation (EU) No 650/2012.)


Amendment 33


Proposal for a regulation


Article 1 — paragraph 3 — point f b (new)








Text proposed by the Commission




Amendment





 










(fb)






questions of entitlement to transfer or adjustment, in the case of a divorce, between spouses or former spouses, of rights to retirement or disability pensions accrued during marriage.











Amendment 34


Proposal for a regulation


Article 2 — paragraph 1 — point a








Text proposed by the Commission




Amendment











(a)


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












(a)


‘matrimonial property regime’: a set of rules 
applicable to
 the property relationships of spouses, between the spouses and in respect of third parties
, as a result of marriage
;









Amendment 35


Proposal for a regulation


Article 2 — paragraph 1 — point b








Text proposed by the Commission




Amendment











(b)


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












(b)


‘marriage contract’: any agreement by which spouses 
or future spouses
 organise their 
matrimonial
 property relationships;









Amendment 36


Proposal for a regulation


Article 2 — paragraph 1 — point c — introductory part








Text proposed by the Commission




Amendment











(c)


‘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:












(c)


‘authentic instrument’: an instrument 
in property matters
 which has been 
formally
 drawn up or registered as an authentic instrument in 
a
 Member State and the authenticity of which:









(Corresponds to Article 3(1), point (i), of Regulation (EU) No 650/2012.)


Amendment 37


Proposal for a regulation


Article 2 — paragraph 1 — point d








Text proposed by the Commission




Amendment











(d)


‘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;












(d)


‘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, and the determination of costs or expenses by an officer of the court;









(Corresponds to Article 3(1), point (g), of Regulation (EU) No 650/2012.)


Amendment 38


Proposal for a regulation


Article 2 — paragraph 1 — point e








Text proposed by the Commission




Amendment











(e)


‘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
;












(e)


‘Member State of origin’: the Member State in which the decision has been given, the authentic instrument 
established or
 the court settlement approved or 
concluded
;









(Corresponds to Article 3(1), point (e), of Regulation (EU) No 650/2012.)


Amendment 39


Proposal for a regulation


Article 2 — paragraph 1 — point f








Text proposed by the Commission




Amendment











(f)


‘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
;












(f)


‘Member State 
of enforcement’
: the Member State in which 
the declaration of enforceability
 or enforcement of the decision, 
court settlement or
 authentic instrument 
is sought
;









(Corresponds to Article 3(1), point (f), of Regulation (EU) No 650/2012.)


Amendment 40


Proposal for a regulation


Article 2 — paragraph 1 — point g








Text proposed by the Commission




Amendment













(g)






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;










deleted







Amendment 41


Proposal for a regulation


Article 2 — paragraph 1 a (new)








Text proposed by the Commission




Amendment





 




1a.
   
For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of matrimonial property regimes which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:






 










(a)






may be made the subject of an appeal to or review by a judicial authority; and










 










(b)






have a similar force and effect as a decision of a judicial authority on the same matter.










 




The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 37a.







(This provision corresponds to Article 3(2) of Regulation (EU) No 650/2012.)


Amendment 42


Proposal for a regulation


Article - 3 (new)








Text proposed by the Commission




Amendment





 




Article - 3






 




Jurisdiction in matters of matrimonial property regimes within the Member States






 




This Regulation shall not affect domestic jurisdiction over matrimonial property cases in the Member States.







Amendment 43


Proposal for a regulation


Article 3








Text proposed by the Commission




Amendment





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
.


The courts of a Member State seised 
in matters of
 the succession of a spouse under Regulation 
(EU) No 650/2012
 shall also have jurisdiction to rule on matters of the matrimonial property regime arising in connection with the 
succession case
.





Amendment 44


Proposal for a regulation


Article 4








Text proposed by the Commission




Amendment





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.


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 to rule on matters of the matrimonial property regime arising in connection with the application
, if the jurisdiction of the courts concerned has been recognised, expressly or otherwise in an unequivocal manner by the spouses
.






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.


Failing 
recognition of the jurisdiction of the court referred to in paragraph 1,
 jurisdiction 
shall be
 governed by 
Article
 5 et seq.





Amendment 45


Proposal for a regulation


Article 4 a (new)








Text proposed by the Commission




Amendment





 




Article 4a






 




Choice-of-court agreement






 




1.
   
The spouses may 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 Article 16 are to have jurisdiction to rule on matters of their matrimonial property regime. Such jurisdiction shall be exclusive.






 




Without prejudice to the third subparagraph, a choice-of-court agreement may be concluded or amended at any time, but no later than when the case is brought before the court.






 




If the law of the forum so provides, the spouses may also choose the court after the case has been brought before the court. In that event, such choice shall be recorded in court in accordance with the law of the forum.






 




If the agreement is concluded before the proceedings, it must be drawn up in writing and dated and signed by the spouses. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.






 




2.
   
The spouses may also agree that, if no court has been chosen, the courts of the Member State whose law is applicable pursuant to Article 17 are to have jurisdiction.







Amendment 46


Proposal for a regulation


Article 4 b (new)








Text proposed by the Commission




Amendment





 




Article 4b






 




Jurisdiction based on the appearance of the defendant






 




1.
   
Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State whose law has been chosen under Article 16, or whose law is applicable under Article 17, and before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where an appearance was entered to contest the jurisdiction, or where another court has jurisdiction by virtue of Article 3, Article 4 or Article 4a.






 




2.
   
Before assuming jurisdiction under paragraph 1, the court shall ensure that the defendant is informed of his or her right to contest the jurisdiction and of the consequences of entering or not entering an appearance.







Amendment 47


Proposal for a regulation


Article 5








Text proposed by the Commission




Amendment







(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:




Where no court has jurisdiction pursuant to
 Articles 3, 4 
and 4a,
 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,












(a)




in whose territory the spouses are habitually resident at the time when the court is seised
, or failing that,














(b)




of the last common habitual residence
 if one of them still resides there, or, failing that,












(b)




in whose territory the spouses were last habitually resident,
 if one of them still resides there 
at the time when the court is seised
, or, failing that,














(c)




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












(c)




in whose territory the defendant is habitually resident at the time when the court is seised
, or failing that,














(d)


of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of their common ‘domicile’.












(d)


of the nationality of both spouses 
at the time when the court is seised
 or, in the case of the United Kingdom and Ireland, of their common ‘domicile’
, or failing that,












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












(da)






of the nationality of the defendant or, in the case of the United Kingdom and Ireland, of his or her domicile.












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.




 





(With regard to paragraph 2, see amendment to Article 4a (new); the text has been altered.)


Amendment 48


Proposal for a regulation


Article 6








Text proposed by the Commission




Amendment





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.


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




 




In such cases the courts of a Member State shall have jurisdiction to rule only on immovable property or registered assets located in that Member State.







Amendment 49


Proposal for a regulation


Article 7








Text proposed by the Commission




Amendment





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.


Where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 
4a,
 5 and 6, the courts of a Member State may, 
on an exceptional basis,
 rule on a matrimonial property regime case if proceedings cannot reasonably be brought or conducted
, or would be impossible,
 in a third State 
with which the case is closely connected
.




 




The case must have a sufficient connection with the Member State of the court seised.







(Corresponds to Article 11 of Regulation (EU) No 650/2012.)


Amendment 50


Proposal for a regulation


Article 8








Text proposed by the Commission




Amendment





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.


The court seised pursuant to Articles 3, 4, 
4a,
 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.




 




If the court has been seised pursuant to Article 6, its jurisdiction to rule on a counterclaim shall be limited to the immovable property or registered assets which form the subject-matter of the main proceedings.







Amendment 51


Proposal for a regulation


Article 9








Text proposed by the Commission




Amendment





A court shall be deemed to be seised:




For the purposes of this Chapter,
 a court shall be deemed to be seised:










(a)


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














(a)


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














(b)




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.












(b)




if
 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
, or










 










(ba)






if the proceedings are opened of the court's own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court
.









(Corresponds to Article 14 of Regulation (EU) No 650/2012.)


Amendment 52


Proposal for a regulation


Article 12 — paragraph 1








Text proposed by the Commission




Amendment





1.   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.


1.   Where proceedings involving the same cause of action and between the 
spouses
 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.





(Corresponds to Article 17 of Regulation (EU) No 650/2012.)


Amendment 54


Proposal for a regulation


Article 13 — paragraph 2








Text proposed by the Commission




Amendment





2.   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.


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





(Corresponds to Article 18 of Regulation (EU) No 650/2012.)


Amendment 55


Proposal for a regulation


Article 13 a (new)








Text proposed by the Commission




Amendment





 




Article 13a






 




Provision of information to spouses






 




The competent authority shall be obliged to inform the spouse(s), within a reasonable time, of any matrimonial property regime proceedings which are initiated against them.







Amendment 56


Proposal for a regulation


Article 14








Text proposed by the Commission




Amendment







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.




Application may be made to the courts of
 a Member State 
for such provisional
, including protective, measures 
as may be available under the law
 of that State, even 
if,
 under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.





(Corresponds to Article 19 of Regulation (EU) No 650/2012.)


Amendment 57


Proposal for a regulation


Article 15 — paragraph 1








Text proposed by the Commission




Amendment





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




1.
   The law applicable to a matrimonial property regime under 
Articles
 16 
and
 17 shall apply to all 
assets falling under that regime, regardless of their location
.





Amendment 58


Proposal for a regulation


Article 15 — paragraph 1 a (new)








Text proposed by the Commission




Amendment





 




1a.
   
The law applicable to a matrimonial property regime shall determine, without prejudice to points (f) and (fa) of Article 1(3), inter alia:






 










(a)






the division of the spouses’ property into different categories before and after the marriage;










 










(b)






the transfer of property from one category to another;










 










(c)






liability for the other spouse’s debts, where necessary;










 










(d)






the spouses’ rights of disposal during the marriage;










 










(e)






dissolution and liquidation of the matrimonial property regime and division of property in the event of dissolution of the marriage;










 










(f)






the impact of the matrimonial property regime on a legal relationship between one of the spouses and a third party on the basis of Article 35;










 










(g)






the material validity of a matrimonial property agreement.











Amendment 59


Proposal for a regulation


Article 15 a (new)








Text proposed by the Commission




Amendment





 




Article 15a






 




Universal application






 




Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.







(See amendment to Article 21; the text has been altered.)


Amendment 60


Proposal for a regulation


Article 16








Text proposed by the Commission




Amendment





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:




1.
   The spouses or future spouses may 
agree to designate or to change
 the law applicable to their matrimonial property regime, as long as it is one of the following laws:












(a)






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








 












(b)




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














(a)




the law of the State 
where
 the spouses 
or future spouses, or one of them, is/are habitually resident
 at the time 
when the agreement is concluded
, or
















(c)




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














(b)




the law of 
a
 State of which one of the spouses or future spouses is a national at the time 
when the agreement is concluded
.








 




2.
   
Unless the spouses agree otherwise, a change of the law applicable to the matrimonial property regime made during the marriage shall have prospective effect only.






 




3.
   
If the spouses choose to make that change of applicable law retroactive, its retroactive effect shall not affect the validity of previous transactions entered into under the law hitherto applicable or the rights of third parties deriving from the law previously applicable.







Amendment 61


Proposal for a regulation


Article 17 — paragraph 1 — introductory part








Text proposed by the Commission




Amendment





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


1.   If 
no choice-of-law agreement is made pursuant to Article 16
, the law applicable to the matrimonial property regime shall be:





Amendment 62


Proposal for a regulation


Article 17 — paragraph 1 — point a








Text proposed by the Commission




Amendment











(a)


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












(a)


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









Amendment 63


Proposal for a regulation


Article 17 — paragraph 1 — point c








Text proposed by the Commission




Amendment











(c)


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.












(c)


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









Amendment 64


Proposal for a regulation


Article 18








Text proposed by the Commission




Amendment







Article 18






deleted








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.




 





Amendment 65


Proposal for a regulation


Article 19








Text proposed by the Commission




Amendment





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.




1.   
The agreement on
 the choice of applicable law 
referred to in Article 16 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.






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




2.   
That agreement shall comply with the formal requirements of the law applicable to the matrimonial property regime or of the law of the State in which the agreement was concluded.






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
.


3.   
However,
 if the law of the State in which 
both
 spouses have their habitual residence at the time of 
their agreement on
 the choice 
of applicable law
 provides for additional formal requirements for 
agreements of that type or, failing that,
 for the marriage contract, those requirements 
shall apply
.




 




4.
   
If the spouses are habitually resident in different States at the time of their agreement on the choice of the applicable law and the laws of those States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.






 




5.
   
If only one of the spouses is habitually resident in a Member State at the time when the agreement is concluded and that State lays down additional formal requirements for agreements of that type, those requirements shall apply.







(Similar to Article 5(2) of Regulation (EU) No 650/2012.)


Amendment 66


Proposal for a regulation


Article 20








Text proposed by the Commission




Amendment







Law applicable to the form of
 marriage contract




Formal requirements
 for a marriage contract






1.
   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.




The 
formal aspects of a
 marriage contract shall be 
governed mutatis mutandis by Article 19
. 
Any additional formal requirements within the meaning of Article 19(3) shall for the purposes of this Article relate only to the marriage contract.








2.
   
Notwithstanding paragraph 1, the marriage contract must at least be set out 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 the marriage contract is concluded provides for additional formal requirements for that contract, these requirements must be complied with.




 





Amendment 67


Proposal for a regulation


Article 20 a (new)








Text proposed by the Commission




Amendment





 




Article 20a






 




Adaptation of rights in rem






 




Where a person invokes a right in rem to which he or she is entitled under the law applicable to the matrimonial property regime and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.







(Corresponds to Article 31 of Regulation (EU) No 650/2012.)


Amendment 68


Proposal for a regulation


Article 21








Text proposed by the Commission




Amendment







Article 21






deleted








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.




 





Amendment 69


Proposal for a regulation


Article 22








Text proposed by the Commission




Amendment







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.






1.
   
Overriding mandatory provisions are provisions the disregard for which would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. The competent authorities should not interpret the public policy exception in a way that is contrary to the Charter of Fundamental rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination.






 




2.
   
This Regulation shall not restrict the application of the overriding mandatory provisions of the law of the forum, without prejudice to the transaction protection provisions applicable pursuant to Article 35.







Amendment 70


Proposal for a regulation


Article 23








Text proposed by the Commission




Amendment





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.


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





(Corresponds to Article 35 of Regulation (EU) No 650/2012.)


Amendment 71


Proposal for a regulation


Article 24








Text proposed by the Commission




Amendment





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.


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





Amendment 72


Proposal for a regulation


Article 25








Text proposed by the Commission




Amendment





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


States with 
more than one
 legal 
system
 — territorial conflicts of laws




 




1.
   Where 
the law specified by this Regulation is that of
 a State 
which
 comprises several territorial units each of which has its own 
rules
 of law 
in respect of matrimonial property regimes, the internal conflict-of-laws rules of that State shall determine the relevant territorial unit whose rules of law are to apply.






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:






1a.
   
In the absence of such internal conflict-of-laws rules:












(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;












(a)


any reference to the law of 
the
 State 
referred to in paragraph 1
 shall, for the purposes of determining the law applicable 
pursuant to provisions referring to the habitual residence of the spouses
, 
be construed
 as 
referring
 to the law 
of
 the territorial unit 
in which the spouses have their habitual residence
;














(b)


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












(b)


any reference to 
the law of the State referred to in paragraph 1
 shall
, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the spouses,
 be construed as a reference to 
the law of the
 territorial unit 
with which the spouses have the closest connection
;














(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
.












(c)


any reference to 
the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of
 the territorial unit 
in which the relevant element is located
.









(Corresponds to Article 36 of Regulation (EU) No 650/2012.)


Amendment 73


Proposal for a regulation


Article 25 a (new)








Text proposed by the Commission




Amendment





 




Article 25a






 




States with more than one legal system — inter-personal conflicts of laws






 




In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of matrimonial property regimes, any reference to the law of such a State shall be construed as referring to the system of law or set of rules determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouses have the closest connection shall apply.







Amendment 74


Proposal for a regulation


Article 25 b (new)








Text proposed by the Commission




Amendment





 




Article 25b






 




Non-application of this Regulation to internal conflicts of laws






 




A Member State which comprises several territorial units each of which has its own rules of law in respect of matrimonial property regimes shall not be required to apply this Regulation to conflicts of laws arising between such units only.







(Corresponds to Article 38 of Regulation (EU) No 650/2012.)


Amendment 75


Proposal for a regulation


Article 26 — paragraph 2








Text proposed by the Commission




Amendment





2.   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.


2.   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 
31b to 31o
, apply for 
that
 decision to be recognised.





(Corresponds to Article 39 of Regulation (EU) No 650/2012.)


Amendment 76


Proposal for a regulation


Article 27 — point a








Text proposed by the Commission




Amendment











(a)


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












(a)


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









(Corresponds to Article 40 of Regulation (EU) No 650/2012.)


Amendment 78


Proposal for a regulation


Article 27 — point c








Text proposed by the Commission




Amendment











(c)


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












(c)


if it is irreconcilable with a decision given in 
proceedings
 between the same parties in the Member State 
in which recognition is sought
;









(Corresponds to Article 40 of Regulation (EU) No 650/2012.)


Amendment 79


Proposal for a regulation


Article 27 — point d








Text proposed by the Commission




Amendment











(d)


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
.












(d)


if it is irreconcilable with an earlier decision given in another Member State or in a third State 
in proceedings
 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 
in which recognition is sought
.









(Corresponds to Article 40 of Regulation (EU) No 650/2012.)


Amendment 80


Proposal for a regulation


Article 29








Text proposed by the Commission




Amendment





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


Under no circumstances may a decision 
given in a Member State
 be reviewed as to its substance.





(Corresponds to Article 41 of Regulation (EU) No 650/2012.)


Amendment 81


Proposal for a regulation


Article 30








Text proposed by the Commission




Amendment





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.


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 
in the Member State of origin
.





(Corresponds to Article 42 of Regulation (EU) No 650/2012.)


Amendment 82


Proposal for a regulation


Article 31








Text proposed by the Commission




Amendment





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


Decisions given in a Member State 
and
 enforceable 
in that State
 shall be 
enforceable
 in 
another
 Member 
State when, on the application of any interested party, they have been declared enforceable there in accordance with the procedure laid down in Articles 31b to 31o.







(Corresponds to Article 43 of Regulation (EU) No 650/2012.)


Amendment 83


Proposal for a regulation


Article 31 a (new)








Text proposed by the Commission




Amendment





 




Article 31a






 




Determination of domicile






 




To determine whether, for the purposes of the procedure provided for in Articles 31b to 31o, a party is domiciled in the Member State of enforcement, the court seised shall apply the internal law of that Member State.







(Corresponds to Article 44 of Regulation (EU) No 650/2012.)


Amendment 84


Proposal for a regulation


Article 31 b (new)








Text proposed by the Commission




Amendment





 




Article 31b






 




Jurisdiction of local courts






 




1.
   
The application for a declaration of enforceability shall be submitted to the court or competent authority of the Member State of enforcement communicated by that Member State to the Commission in accordance with Article 37.






 




2.
   
The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.







(Corresponds to Article 45 of Regulation (EU) No 650/2012.)


Amendment 85


Proposal for a regulation


Article 31 c (new)








Text proposed by the Commission




Amendment





 




Article 31c






 




Procedure






 




1.
   
The application procedure shall be governed by the law of the Member State of enforcement.






 




2.
   
The applicant shall not be required to have a postal address or an authorised representative in the Member State of enforcement.






 




3.
   
The application shall be accompanied by the following documents:






 










(a)






a copy of the decision which satisfies the conditions necessary to establish its authenticity;










 










(b)






the attestation issued by the court or competent authority of the Member State of origin using the form established in accordance with the advisory procedure referred to in Article 37c(2), without prejudice to Article 31d.











(Corresponds to Article 46 of Regulation (EU) No 650/2012.)


Amendment 86


Proposal for a regulation


Article 31 d (new)








Text proposed by the Commission




Amendment





 




Article 31d






 




Non-production of the attestation






 




1.
   
If the attestation referred to in point (b) of Article 31c(3) is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.






 




2.
   
If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be done by a person qualified to do translations in one of the Member States.







(Corresponds to Article 47 of Regulation (EU) No 650/2012.)


Amendment 87


Proposal for a regulation


Article 31 e (new)








Text proposed by the Commission




Amendment





 




Article 31e






 




Declaration of enforceability






 




The decision shall be declared enforceable immediately on completion of the formalities in Article 31c without any review under Article 27. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.







(Corresponds to Article 48 of Regulation (EU) No 650/2012.)


Amendment 88


Proposal for a regulation


Article 31 f (new)








Text proposed by the Commission




Amendment





 




Article 31f






 




Notice of the decision on the application for a declaration of enforceability






 




1.
   
The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State of enforcement.






 




2.
   
The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the decision, if not already served on that party.







(Corresponds to Article 49 of Regulation (EU) No 650/2012.)


Amendment 89


Proposal for a regulation


Article 31 g (new)








Text proposed by the Commission




Amendment





 




Article 31 g






 




Appeal against the decision on the application for a declaration of enforceability






 




1.
   
The decision on the application for a declaration of enforceability may be appealed against by either party.






 




2.
   
The appeal shall be lodged with the court communicated by the Member State concerned to the Commission in accordance with Article 37.






 




3.
   
The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.






 




4.
   
If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 11 shall apply, even where the party against whom enforcement is sought is not domiciled in any of the Member States.






 




5.
   
An appeal against the declaration of enforceability shall be lodged within 30 days of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be 60 days and shall run from the date of service, either on him or her in person or at his or her residence. No extension may be granted on account of distance.







(Corresponds to Article 50 of Regulation (EU) No 650/2012.)


Amendment 90


Proposal for a regulation


Article 31 h (new)








Text proposed by the Commission




Amendment





 




Article 31h






 




Procedure to contest the decision given on appeal






 




The decision given on the appeal may be contested only by the procedure communicated by the Member State concerned to the Commission in accordance with Article 37.







(Corresponds to Article 51 of Regulation (EU) No 650/2012.)


Amendment 91


Proposal for a regulation


Article 31 i (new)








Text proposed by the Commission




Amendment





 




Article 31i






 




Refusal or revocation of a declaration of enforceability






 




The court with which an appeal is lodged under Article 31 g or Article 31h shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Article 27. It shall give its decision without delay.







(Corresponds to Article 52 of Regulation (EU) No 650/2012.)


Amendment 92


Proposal for a regulation


Article 31 j (new)








Text proposed by the Commission




Amendment





 




Article 31j






 




Staying of proceedings






 




The court with which an appeal is lodged under Article 31 g or Article 31h shall, on the application of the party against whom enforcement is sought, stay the proceedings if the enforceability of the decision is suspended in the Member State of origin by reason of an appeal.







(Corresponds to Article 53 of Regulation (EU) No 650/2012.)


Amendment 93


Proposal for a regulation


Article 31 k (new)








Text proposed by the Commission




Amendment





 




Article 31k






 




Provisional, including protective, measures






 




1.
   
When a decision must be recognised in accordance with this Section, nothing shall prevent the applicant from availing himself or herself of provisional, including protective, measures in accordance with the law of the Member State of enforcement without a declaration of enforceability under Article 31e being required.






 




2.
   
The declaration of enforceability shall carry with it by operation of law the power to proceed to any protective measures.






 




3.
   
During the time specified for an appeal pursuant to Article 31 g(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.







(Corresponds to Article 54 of Regulation (EU) No 650/2012.)


Amendment 94


Proposal for a regulation


Article 31 l (new)








Text proposed by the Commission




Amendment





 




Article 31l






 




Partial enforceability






 




1.
   
Where a decision has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.






 




2.
   
An applicant may request a declaration of enforceability limited to parts of a decision.







(Corresponds to Article 55 of Regulation (EU) No 650/2012.)


Amendment 95


Proposal for a regulation


Article 31 m (new)








Text proposed by the Commission




Amendment





 




Article 31m






 




Legal aid






 




An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses, shall be entitled, in any proceedings for a declaration of enforceability, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State of enforcement.







(Corresponds to Article 56 of Regulation (EU) No 650/2012.)


Amendment 96


Proposal for a regulation


Article 31 n (new)








Text proposed by the Commission




Amendment





 




Article 31n






 




No security, bond or deposit






 




No security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition, enforceability or enforcement of a decision given in another Member State on the ground that he or she is a foreign national or that he or she is not domiciled or resident in the Member State of enforcement.







(Corresponds to Article 57 of Regulation (EU) No 650/2012.)


Amendment 97


Proposal for a regulation


Article 31 o (new)








Text proposed by the Commission




Amendment





 




Article 31o






 




No charge, duty or fee






 




In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State of enforcement.







(Corresponds to Article 58 of Regulation (EU) No 650/2012.)


Amendment 98


Proposal for a regulation


Article 32








Text proposed by the Commission




Amendment







Recognition
 of authentic instruments




Acceptance
 of authentic instruments




1.   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
.


1.   
An
 authentic 
instrument established in
 a Member State shall 
have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects
, provided 
that this
 is not 
manifestly
 contrary to 
the
 public policy 
(ordre public) of
 the Member State 
concerned
.




 




A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 37c(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin.






 




1a.
   
Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State as long as the challenge is pending before the competent court.






 




1b.
   
Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III or the law referred to in Article 36. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court.






 




1c.
   
If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument concerning a property regime, that court shall have jurisdiction over that question.








2.
   
The recognition of authentic instruments confers on them evidentiary effect with regard to their contents and a presumption of validity.




 





(Corresponds to Article 59 of Regulation (EU) No 650/2012.)


Amendment 99


Proposal for a regulation


Article 33








Text proposed by the Commission




Amendment





1.   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
.


1.   
An
 authentic 
instrument which is
 enforceable in 
the
 Member State 
of origin
 shall be declared enforceable in another Member State 
on the application of any interested party in accordance with
 the procedure 
provided for
 in 
Articles 31b to 31o
.




 




1a.
   
For the purposes of point (b) of Article 31c(3), the authority which established the authentic instrument shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 37c(2).






2.   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
.


2.   The court with which an appeal is lodged under 
Article 31 g or Article 31h shall
 refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument is manifestly contrary to 
the
 public policy 
(ordre public) of
 the Member State 
of enforcement
.





(Corresponds to Article 60 of Regulation (EU) No 650/2012.)


Amendment 100


Proposal for a regulation


Article 34








Text proposed by the Commission




Amendment







Recognition and
 enforceability of court settlements


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
.




1.
   Court settlements 
which
 are enforceable in the Member State of origin shall be declared enforceable in another Member State 
on the application
 of any interested party 
in accordance with the procedure provided for in Articles 31b to 31o
.




 




1a.
   
For the purposes of point (b) of Article 31c(3), the court which approved the settlement or before which it was concluded shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 37c(2).






 




1b.
   The court with which an appeal is lodged under 
Article 31 g or 31h shall
 refuse or revoke a declaration of enforceability only if enforcement of the court settlement is manifestly contrary to 
the
 public policy 
(ordre public) of
 the Member State 
of enforcement
.





(Corresponds to Article 61 of Regulation (EU) No 650/2012.)


Amendment 101


Proposal for a regulation


Article 35 — title








Text proposed by the Commission




Amendment







Effects in respect
 of third parties




Protection
 of third parties





Amendment 102


Proposal for a regulation


Article 35 — paragraph 2








Text proposed by the Commission




Amendment





2.   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.


2.   However, 
in a legal relationship between a spouse and a third party, neither of the spouses may rely on
 the law applicable to the matrimonial property regime if 
the spouse in a legal relationship with the third party and the third party have
 their habitual residence in 
the same
 State
, which is not the State whose law is
 applicable to the matrimonial property regime. 
In such cases, the law of the Member State of the habitual residence of that spouse and the third party shall apply to the effects on the third party of the matrimonial property regime.







Amendment 103


Proposal for a regulation


Article 35 — paragraph 3








Text proposed by the Commission




Amendment





3.   
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
.


3.   
Paragraph 2 shall not apply if:






 










(a)






the third party was aware, or ought to have been aware, of the legal order applicable to the matrimonial property regime, or










 










(b)






the requirements concerning registration or disclosure of the matrimonial property regime in accordance with the law of the State of the habitual residence of the third party and the spouse dealing with the third party were fulfilled, or










 










(c)






in dealings concerning immovable property, the requirements concerning registration or disclosure of the matrimonial property regime in respect of the immovable property in accordance with the law of the State of the location of the immovable property were fulfilled
.









Amendment 104


Proposal for a regulation


Article - 36 (new)








Text proposed by the Commission




Amendment





 




Article - 36






 




Habitual residence






 




1.
   
For the purposes of this Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of their central administration.






 




The habitual residence of a natural person acting in the course of his or her business activity shall be his or her principal place of business.






 




2.
   
Where the legal relationship is concluded in the course of the operations of a branch, agency or any other establishment, or if, under the contract, performance is the responsibility of such branch, agency or establishment, the place where the branch, agency or any other establishment is located shall be treated as the place of habitual residence.






 




3.
   
For the purposes of determining the habitual residence, the relevant point in time shall be the time of the conclusion of the legal relationship.







Amendment 105


Proposal for a regulation


Article 37 — paragraph 1 — point b a (new)








Text proposed by the Commission




Amendment





 










(ba)






the names and contact details of the courts and authorities with competence to deal with applications for a declaration of enforceability in accordance with Article 31b(1) and with appeals against decisions on such applications in accordance with Article 31 g(2);











(Corresponds to Article 78(1), point (a), of Regulation (EU) No 650/2012.)


Amendment 106


Proposal for a regulation


Article 37 — paragraph 1 — point b b (new)








Text proposed by the Commission




Amendment





 










(bb)






the procedures to contest the decision given on appeal referred to in Article 31h;











Amendment 108


Proposal for a regulation


Article 37 — paragraph 3








Text proposed by the Commission




Amendment





3.   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.


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




 




The Member States shall ensure that the information on that multilingual website is also accessible through any official website they set up, in particular by providing a link to the Commission website.







(Corresponds to Article 78(3) of Regulation (EU) No 650/2012.)


Amendment 109


Proposal for a regulation


Article 37 — paragraph 3 a (new)








Text proposed by the Commission




Amendment





 




3a.
   
The Commission shall introduce an information and training tool for the relevant court officials and legal practitioners by setting up an interactive portal in all official languages of the institutions of the Union, including a system for sharing professional expertise and practices.







Amendment 110


Proposal for a regulation


Article 37 a (new)








Text proposed by the Commission




Amendment





 




Article 37a






 




Establishment and subsequent amendment of the list containing the information referred to in Article 2(1a)






 




1.
   
The Commission shall, on the basis of the notifications by the Member States, establish the list of the other authorities and legal professionals referred to in Article 2(1a).






 




2.
   
The Member States shall notify the Commission of any subsequent changes to the information contained in that list. The Commission shall amend the list accordingly.






 




3.
   
The Commission shall publish the list and any subsequent amendments in the Official Journal of the European Union.






 




4.
   
The Commission shall make all information notified in accordance with paragraphs 1 and 2 publicly available through any other appropriate means, in particular through the European Judicial Network in civil and commercial matters.







(Corresponds to Article 79 of Regulation (EU) No 650/2012.)


Amendment 111


Proposal for a regulation


Article 37 b (new)








Text proposed by the Commission




Amendment





 




Article 37b






 




Establishment and subsequent amendment of the attestations and forms referred to in Articles 31c, 32, 33 and 34






 




The Commission shall adopt implementing acts establishing and subsequently amending the attestations and forms referred to in Articles 31c, 32, 33 and 34. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 37c(2).







(Corresponds to Article 80 of Regulation (EU) No 650/2012.)


Amendment 112


Proposal for a regulation


Article 37 c (new)








Text proposed by the Commission




Amendment





 




Article 37c






 




Committee procedure






 




1.
   
The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.






 




2.
   
Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.







(Corresponds to Article 81 of Regulation (EU) No 650/2012.)


Amendment 113


Proposal for a regulation


Article 39 — paragraph 3








Text proposed by the Commission




Amendment





3.   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.


3.   Chapter III shall apply only to spouses who after the date of application of this Regulation:




 










(a)






marry, or










 










(b)






specify the law applicable to the matrimonial property regime.










 




An agreement on the choice of applicable law concluded before [the time of application of this Regulation] shall likewise be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law in force at the time when the agreement on the choice of law is concluded.








(1)  

OJ L 201, 27.7.2012, p. 107.



(2)  

OJ L 55, 28.2.2011, p. 13.