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I. HARMONIZING THE LAW APPLICABLE TO DIVORCE AND LEGAL SEPARATION—ENHANCED COOPERATION AS THE WAY FORWARD?

Published online by Cambridge University Press:  11 November 2010

Aude Fiorini
Aude Fiorini
Affiliation:
University of Dundee.
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Extract

After almost two years of uncertainty, the EU is now progressing towards the adoption of harmonized rules on the law applicable to divorce through the activation, for the very first time, of the enhanced cooperation mechanism.

Information

Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 59 , Issue 4 , October 2010, pp. 1143 - 1158
Copyright
Copyright © 2010 British Institute of International and Comparative Law

A. Rome III: State of Play 2006–2010

After almost two years of uncertainty, the EU is now progressing towards the adoption of harmonized rules on the law applicable to divorce through the activation, for the very first time, of the enhanced cooperation mechanism.

The question of the law applicable to divorce (Rome III) has been on the agenda of the Commission for over 10 years.Footnote 1 A Green Paper, published in March 2005, showed that the combination of the application of rules of jurisdiction, recognition and enforcement harmonized by the Brussels II and Brussels IIa Regulations,Footnote 2 and of diverse domestic substantive and choice of law rules raised a number of difficulties.Footnote 3 Following extensive consultations, on 17 July 2006 the Commission issued a proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.Footnote 4

Based on articles 61 (c) and 67 (1) of the EC Treaty, this proposal introduced a limited choice of forum, deleted article 6 of the Brussels IIa Regulation and replaced article 7 with a provision setting out subsidiary grounds of jurisdiction. It further contained a choice of law chapter encompassing provisions allowing spouses (under certain conditions) to choose the law applicable to their divorce, and containing, in the absence of such choice by the parties, a harmonized choice of law rule. In addition the proposal provided rules on the possible role of the EJN on the application of foreign law, the exclusion of renvoi and the public policy exception.

Within three months of the publication both the UK and Ireland had indicated that they would not opt-in.Footnote 5 None of the other Member States had such an option at their disposal and, although a majority appeared to be in favour of the proposed Regulation, it proved challenging to try and reconcile the position of those States whose legal tradition in the area of divorce was substantially divergent. Indeed the position of States as regards the dissolution of matrimonial links varies enormously with, at one end of the spectrum, Poland or Malta, where divorce is allowed very restrictively or in the latter case prohibited, and, at the other end, Scandinavian States, where no actual ground for divorce is required. Strong differences in Member States' positions are not uncommon in cross-border family cases. The difficulty to achieve consensus had not prevented States to reach a (albeit contrived) political compromise a few years before regarding the chid abduction chapter of Brussels IIa where unanimous approval was eventually secured at the Council.Footnote 6 Nevertheless it must be borne in mind that, unlike Brussels IIa, Rome III raised not just policy choices but issues of substance.Footnote 7 The very different values underlying States' choice of law approaches proved impossible to reconcile. In this dossier, where unanimity was required, one State was primarily responsible for the collapse of the negotiations: Sweden could not accept to apply foreign divorce rules that would be (by definition) less liberal than its own. After two years of difficult debates, in June 2008, the JHA Council noted that the proposal faced insurmountable difficulties which rendered unanimity impossible to reach and that the objectives of Rome III ‘could not be attained within a reasonable period by applying the relevant provisions of the Treaties’.Footnote 8 Six weeks later, the Council observed that at least eight Member States intended to ask the Commission to submit a proposal for enhanced cooperation with more States likely to join in that cooperation following a Commission proposal. Yet even on this issue States appeared to be divided, some questioning whether enhanced cooperation was appropriate, others indicating that whilst they did not intend to participate, they did not object to enhanced cooperation. The Commission announced it would welcome a formal request to submit a proposal for enhanced cooperation but ‘did not wish to indicate beforehand what the content of that proposal might be’, stressing that it ‘would consider the request in the light of the political, legal and practical aspects of a proposal of this nature’.Footnote 9

In late July 2008 Greece, Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia addressed a formal enhanced cooperation request to the Commission. Bulgaria and then France joined in the following 6 months. The request however laid dormant for 18 monthsFootnote 10 until the formation of the second Barroso Commission, when the then Commissioner-designate for Justice, Fundamental Rights and Citizenship, Viviane Reding, announced to the Committees on Civil Liberties, Justice and Home Affairs, on Legal Affairs and on Women's rights and Gender Equality of the European Parliament that she intended to move forward with a new Regulation for cross-border divorce cases on the basis of enhanced cooperation in the very first months of her mandate. She underlined that although she was a firm believer in the participation of all Member States in all EU policies, there was no other solution where unanimity was impossible to reach in a matter with such a human dimension.Footnote 11 On 24 March 2010 the European Commission issued two proposals: one for a Council decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separationFootnote 12 and the other for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separationFootnote 13. The hope expressed by Reding that ‘a strong proposal from the Commission, supported by many Member States, would soon attract all Member States to join’Footnote 14, which was soon followed by a direct invitation to States ‘that have not yet done so to participate in the enhanced cooperation’,Footnote 15 was progressively answered by a number of States: Germany, Belgium, Latvia (traditionally lex forist), Portugal and even MaltaFootnote 16 joining the enhanced cooperation (though Greece had withdrawn its participation shortly before the publication of these proposals).

Faced with a request stemming from over half of the Member States of the EU, in June 2010 the Justice and Home Affairs Council reached agreement on a decision authorising the first enhanced cooperation in the history of the EU.Footnote 17 The European Parliament gave its consent for the enhanced cooperation measure on 16 June and by Decision of 12 July 2010, the Council of the European Union authorised enhanced cooperation in this area.Footnote 18

B. Enhanced Cooperation in AFSJ

The relatively lengthy period of latency between the first request by States in the summer of 2008 and the Commission's initiative may be explained in part by the expected institutional and legal changes which marked 2009, but also in part by the reluctance of the first Barroso Commission to activate this procedure for the first time in the field of judicial cooperation in civil matters, thus moving yet further towards a Europe ‘à la carte’.

Differentiation—which refers to the situations in which (primary or secondary) EU law provides that States will not all be subjected to the same rules—is not a new phenomenon. It existed at the very outset of the European integration process (and later after each enlargement), albeit generally in the form of temporary derogations. It is only with the Maastricht treaty that new, permanent, forms of flexibility emergedFootnote 19 and this development was accompanied by virulent political debates. In 1994 heated reactions followed French Prime Minister Edouard Balladur's idea of ‘cercles concentriques’ (inner and outer circles) or the German CDU-CSU's suggestion of a reinforcement of a European hard core (Kerneuropa) or indeed John Major's Leiden speech promoting (for very different reasons to the French and German suggestions) the idea of a flexible core of countries and policies.

The possibility for (just) a fraction of Member States to adopt new rules can be seen as a useful tool to respond to the variable needs of a wide Union of 27 States and to overcome the Euroscepticism of a number of them. Attractive as it may be (to some) politically, enhanced cooperation can be challenged from a legal perspective. Indeed it seems prima facie difficult to combine with the principles of unity of the common/internal market and of uniformity of Community/Union lawFootnote 20 and may further, if generalized, also appear to be weakening the foundations of what has been built since 1957. Both risks may however be alleviated if the mechanism is encased in tight conditions ensuring that the closer cooperation framework is such that it cannot affect the internal market, does neither derogate from, nor alter the acquis, can never be activated where the cooperation of all Member States could be achieved and aims at furthering the same goals.Footnote 21

This is precisely on this basis that the Amsterdam Treaty formally introduced the concept of enhanced cooperation in the EC and EU Treaties as a means for ‘the most ambitious Member States to deepen cooperation between themselves while leaving the door open to other Member States to join them at a later stage’ thus avoiding that ‘the pace of European integration is determined by the slowest’.Footnote 22 This development took place in the form of general provisions (articles 43–45 EU Treaty—Amsterdam version) complemented by specific provisions relating to the first and third pillars (articles 11 EC Treaty and 40 EU Treaty—Amsterdam version). Although the mechanism evolved after the Nice and the Lisbon Treaties (the latter of which merely reproduced the amendments enshrined in the late Constitutional Treaty on this matter), the essence of the framework has not substantially changed: enhanced cooperation is a process whereby a group of Member States (which is not pre-defined) is allowed by the European organs to adopt new rules (in an area which is not pre-defined) using the institutions, mechanisms and procedures established by the treaties provided a (large) number of formal and substantial conditions are met.

This framework and conditions are now found in article 20 of the Treaty on European Union (TEU) as well as articles 326–334 of the Treaty on the Functioning of the European Union (TFEU).

C. Authorization of Enhanced Cooperation in the Field of the Law Applicable to Divorce and Legal Separation

Article 20 TEUFootnote 23 lays down the essential features of enhanced cooperation. Further limits and ‘detailed arrangements’ are the provided in articles 326–334 TFEU.

1. Area covered by the Treaties and area of non-exclusive Union competence

Enhanced cooperation is available in the field of choice of law in divorce as it is ‘one of the areas covered by the Treaties’ (article 329 TFEU) as well as an area of non-exclusive Union competence (article 20(1) TEU): as indicated by article 4(2)(j) TFEU, the area of Freedom, Security and Justice is an area in which competence is shared between the Member States and the Union. Article 81 of the TFEU on judicial cooperation in civil matters (on which the proposal is based) is found in Title V of the TFEU on an Area of Freedom, Security and Justice and comprises sub-paragraph 3 referring to ‘measures concerning family law with cross-border implications’. Member States did not request the benefit of enhanced cooperation in international family law or indeed for all aspects of international divorce law but only in the narrower ‘area of applicable law in matrimonial matters (Rome III)’. The Commission therefore was at pains to argue that ‘conflict of law rules in family law constitute an area, admittedly a limited but well-defined area, within the meaning of the treaties in which enhanced cooperation may be established’, immediately clarifying that the area of the proposed enhanced cooperation did ‘not comprise conflict of law rules for the property consequences of divorce’.Footnote 24 This limitation does not surprise. Though rather unclear on the issue of its exact scope, the choice of law chapter of the failed 2006 Rome III proposal itself was only concerned with the principle of divorce rather than its (personal or financial) consequences.Footnote 25 As enhanced cooperation is only open as a last resort (article 20(2) TEU, see below), it should not extend to an area where EU-wide measures are possible. The Commission is planningFootnote 26 to publish a ‘proposal for a Regulation on the conflict of laws in matters concerning matrimonial property rights, including the question of jurisdiction and mutual recognition, and for Regulation on the property consequences of the separation of couples from other types of unions’ later in 2010Footnote 27 and enhanced cooperation should not be attempted in this area until it is clear that an EU-wide Regulation will not be achievable.

a) Minimum number of participating States

Enhanced cooperation concerning choice of law in divorce is further available as it has been requested by 14 EU Member States, ie many more than the minimum of nine requested by article 20(2).Footnote 28 It may be noted that the numerical threshold has varied significantly since the Amsterdam Treaty which required that a majority of Member States participate. This exigency, perhaps understandable in the context of a Union of 15, appeared to make the use of enhanced cooperation virtually impossible in a wider Union, which led the Nice Treaty to set a minimum number ne varietur of eight participating Member States (while the Constitutional Treaty tried to reintroduce a more demanding threshold in an ever expanding Union by requiring a minimum of a third of participating Member States). These changes were explained by the difficulty in striking a balance between criteria rendering the recourse to enhanced cooperation practicable, while guarding against the risk of the establishment of several instances of enhanced cooperation in related matters or even in the same area.Footnote 29 In the present case the high number of participating States makes it conceivable that a sub-group of nine request a further form of enhanced cooperation to go even beyond what the new Regulation achieves. Similarly States currently not participating may yet be inclined to demand an alternative form of enhanced cooperation. It appears unlikely that these scenarios would become reality: first as stated in article 20 TEU, enhanced cooperation ‘shall aim to further the objectives of the Union, protect its interests and reinforce its integration process’. It is dubious that two distinct (and in some ways conflicting) instances of enhanced cooperation in the same field by two different groups of Member States could be interpreted as reinforcing the integration process of the Union. The situation may perhaps be different if nine of the 14 participating Member States wished to go yet further. But it is important to recall that the Commission is under no obligation to put forward a proposal where requested by States (article 329 TFEU) and both the Commission and the Council are under the obligation to ‘ensure the consistency of activities undertaken in the context of enhanced cooperation and the consistency of such activities with the policies of the Union’ (article 334 TFEU).

b) Furtherance of the Union' objectives, protection of its interests and reinforcement of the integration process

Article 20 imposes that enhanced cooperation further the objectives of the Union, protect its interests and reinforce its integration process. Enhanced cooperation would ‘benefit’ a large number of people: the 14 participating States represent over 60 per cent of the Union populationFootnote 30 in which it is estimated about 140,000 international divorces were pronounced in 2007. As pointed out by the Commission, article 3(2) TEU provides that ‘the Union shall offer its citizens an area of freedom, security and justice without internal frontiers in which the free movement of persons is ensured …’ This area includes ‘developing judicial cooperation in civil matters having cross-border implications based on the principle of mutual recognition … Such cooperation may include the adoption of measures for the approximation of the laws’ (article 81(1) TFEU). It is undeniable that the harmonization of choice of law rules can be seen as facilitating the mutual recognition of judgments. As the Maintenance Regulation shows, the unification of choice of law rules can be a crucial element enabling the abolition of exequatur.Footnote 31 Of course the free movement of divorce judgments is already a reality since the entry into force of the Brussels II and the Brussels IIa Regulations and does not allow the control of the law applied by the foreign court. In that sense, the entry into force of Rome III in 14 States will not have any direct impact on the recognition of foreign divorce judgments: the same rules will continue to apply whether or not the foreign divorce emanates from a participating State or not. This said it must be recalled that mutual recognition is based on mutual trust and that the harmonization of choice of law rules may serve to reinforce that trust in the judicial decisions given in other (participating) Member States.Footnote 32 Will a more direct link between harmonization of choice of law rules and mutual recognition eventually be made? Could exequatur be abolished for judgments rendered by the participating States when the Brussels IIa Regulation is revised? The possibility of allowing a two-speed framework of recognition and enforcement would not completely be unprecedented: The Maintenance Regulation, which is applicable in 26Footnote 33 Member States provides an example: exequatur is abolished for decisions given in a Member State bound by the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligationsFootnote 34 whilst intermediary measures remain applicable for decisions from Member States which are not subject to the rules of the ProtocolFootnote 35. The fact that the EU as a whole ratified the protocol in April 2010 does not mean that it is directly applicable in all EU Member States: the UK (and Denmark) are not bound by the ratification.Footnote 36 As a result, a two-tier regime has been established: exequatur is abolished for decisions made in one of the 25 Member States bound by the Hague Protocol, whilst a simplified form of exequatur is maintained for decisions made in the UK or Denmark.

Compared with the status quo, the partial unification of choice of law rules may also be interpreted as furthering the objective of ‘ensuring the compatibility of the rules applicable in the Member States concerning the conflict of laws’ as per article 81(2)(c) TFEU, by increasing their compatibility in over half of the Member States. The Commission is slightly optimistic in the calculation it offers to justify this point, as it uses as a starting point the figure of 26 different sets of conflict of law rules existing currently in the 26 EU Member States participating in judicial cooperation in civil mattersFootnote 37 thus ignoring that a number of existing choice of law rules in lex causae States are identical or would lead to the application of the same law.Footnote 38 Yet on the whole it cannot be denied that the introduction of the same choice of law rules, the exclusion of renvoi, the application of a common public policy exception in 14 States including a lex fori State (Latvia) would bring greater harmony and thus ‘reinforce the integration process in this part of the EU’.

Finally it may be argued, as suggested by the CommissionFootnote 39, that, from an institutional point of view, enhanced cooperation is better than the possibility for interested Member States to conclude an international agreement on the law applicable to divorce (which would be possible to the extent that the Union would not be seen as having exercised its competence or indeed could be seen as having decided to cease exercising its competence on the matter).Footnote 40 This results from the fact that enhanced cooperation measures remain under the control of the Commission (which can thus monitor the correct application of the Treaties) and the CJEU (which ensures the uniform interpretation of the adopted measures) but also of the Council which shall ensure its consistency with the policies of the Union (article 334 TFEU). It should also be stressed that the Commission and participating States have the duty to promote participation by as many States as possible (article 328 TFEU), with new interested States being able to participate even once the enhanced cooperation procedure is in progress (article 331 TFEU) or at any other time (article 328). This specification is also an important reminder that enhanced cooperation is not to be a tool offered just to a closed circle of States a priori defined as the hard core of Europe and destined to take systematically the lead of the integration process. Instead, enhanced cooperation is open to any State wishing, on the matter considered, to be part of a ‘pioneer group’.Footnote 41

c) Last resort

Article 20 (2) further provides that ‘the decision authorising enhanced cooperation shall be adopted by the Council as a last resort when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole’. This provision aims at preventing a systematic recourse to a mechanism which has to remain the second best solution. As mentioned above, the JHA Council noted in June 2008 that the last resort condition was met under the terms of the then applicable article 43a TEU:Footnote 42 indeed it appeared undeniable that unanimity could not be attained on the initial Rome III proposal within a reasonable period. It should be recalled that the Rome III proposal, in its original version, comprised a jurisdiction chapter as well as a chapter on applicable law. It is the latter that raised difficulties for a number of States, the jurisdictional amendments remaining largely uncontroversial.Footnote 43 It is not therefore surprising that the 8 countries which put forward the request for enhanced cooperation limited it to the issue of ‘applicable law in matrimonial matters’. The adoption of EU-wide jurisdictional amendments is likely to be achieved at the next revision of the Brussels IIa which should take place following a proposal to be submitted in 2013.Footnote 44

This being so, it is questionable whether the objectives of the cooperation could not have been attained (by a greater number of Member States) in an alternative form to that chosen by the Rome III proposal. The aims pursued by the initial version of Rome III were the provision of a ‘clear and comprehensive legal framework in matrimonial matters in the EU’ improving party autonomy, legal certainty and predictability, avoiding results that do not correspond to the legitimate expectations of the parties, and preventing a rush to court.Footnote 45 These objectives remain applicable in the context of the proposed enhanced cooperation.Footnote 46 Whist there is no doubt that allowing the parties to choose, under limited conditions, the law applicable to their divorce would certainly increase party autonomy and flexibility, one may wonder whether the introduction of choice of law rules in the limited area of the law applicable to the grounds of divorce would really lead to the strengthening of legal certainty and predictability and achieve the desired prevention of a ‘rush’ to court by one of the parties. The problem of rush to court is linked to the combination of a high number of alternative potential fora available under article 3 of the Brussels IIa Regulation and the strictly chronological lis alibi pendens rule. Introducing a harmonized choice of law rule on the principle of divorce in a number of EU Member States is unlikely to improve the situation substantially as long as States continue to apply different private international law and material law rules to the issue of the consequences of divorce. Similarly the mere introduction of semi harmonized choice of law rules, even allowing party autonomy, is not going to improve legal certainty and predictability substantially for the parties in cases which have links with participating and non-participating States if the availability of a large number of potential fora is such that the spouse who does not initiate legal proceedings first finds it difficult to predict where the other one is going to sue. In any case a harmonized choice of law rule does not necessarily lead to uniform (and predictable) solutions.Footnote 47 On the contrary the reform of jurisdictional rules in all EU Member States, for example through the introduction of a hierarchy of jurisdiction grounds, possibly combined with the introduction of a limited party autonomy would serve to achieve these very objectives. As this policy option (though identified in the 2005 Green Paper) has not been attempted,Footnote 48 it may be asked whether the proposed enhanced cooperation is really the last resort to achieve the said objectives.

d) Compliance with Art 326 TFEU

Article 326 provides that ‘any enhanced cooperation shall comply with the Treaties and Union law’. This implies that it does not affect the acquis and nor the principles established by the Treaties (such as the principles of proportionality, subsidiarity, primacy, direct applicability, non discrimination …). The principles of proportionality and subsidiarity do not raise more difficulties in the context of enhanced cooperation than they did with regard to the 2006 Rome III proposalFootnote 49 and the post Lisbon Treaty legal basis for the measure (article 81 TFEU rather than article 65 TEC) makes it also easier to justify the competence of the EU in this field of family law as it no longer necessarily links the necessity of the measure and the proper functioning of the internal market.Footnote 50 That the present proposed enhanced cooperation does not affect the acquis cannot be denied as it covers an area in which no common Union rules currently exist.Footnote 51

In addition nothing in the new proposed Regulation would lead to a breach of the principle of non-discrimination: the rules are to be universal and apply to all proceedings before the courts of participating States whatever the parties' nationality or residence. Reciprocally, as pointed out by the CommissionFootnote 52, courts of non-participating countries will also continue to apply their own rules in a non-discriminatory fashion. Non participation of a number of States will not cause unjustified differentiated treatment between citizens as the situation in non participating States will not deteriorate compared to the situation today.

Article 326 further provides that enhanced cooperation ‘shall not undermine the internal market or economic, social and territorial cohesion’ and that it ‘shall not constitute a barrier to or discrimination in trade between Member States, nor … distort competition between them’. According to the Commission, the increased legal certainty offered to divorcing couples would have a positive effect on the right to free movement between participating States without affecting enterprises or legal relations in the market nor affecting competition and regional policy.

e) Position of non-participating States

Article 327 TFEU requires that enhanced cooperation shall respect the competences, rights and obligations of non-participating Member States whilst these shall not impede its implementation by participating States.

The States outside the closer cooperation will continue to apply their own choice of law rules (where applicable) and will not be forced to give effect to a professio juris (if they do not already do). The new rules will not affect the position of non-participating States regarding related choice of law rules (on maintenance obligations or parental responsibility). Their decisions will further continue to circulate on the basis of the Brussels IIa provisions (where applicable) as will the decisions emanating from States applying uniform choice of law rules. No international instrument will be breached by the enhanced cooperation.

f) Procedure

According to article 329 TFEU, enhanced cooperation is initiated by States addressing a request to the Commission specifying the scope and objectives of the proposed cooperation. The Commission does not have to submit a proposal to that effect but must inform States of its reasons not to. The provision does not specify any deadlines for the submission of a proposal by the Commission.Footnote 53 Once a proposal has been published, authorization to proceed shall then be granted by the Council after obtaining the consent of the Parliament. According to article 330 TFEU, all members of the Council may participate in the deliberations but only members representing participating States may take part in the vote, with unanimity being constituted by the votes of the participating States or qualified majority defined in accordance with article 238(3) TFEU. On 3 June 2010 the JHA Council reached ‘a comfortable qualified majority agreement on authorising the first enhanced cooperation in the history of the EU’ and transmitted the file to the Parliament. The Parliament established that all the conditions set forth by article 20 TEU and articles 326–334 TFEU had been met and recalled that it had approved in 2008 the initial Rome III proposal as amendedFootnote 54, and thus issued a resolution consenting to the draft Council decision authorizing enhanced cooperation on 16 June 2010. The Council adopted the decision authorising enhanced cooperation in the area of the law of divorce and legal separation on 12 July 2010.Footnote 55

The perceived need to be seen as acting for the benefit of EU citizens in this matter,Footnote 56 even if the measure does not apply EU-widely,Footnote 57 is attested by the important media campaign of the European institutions in this field since the beginning of 2010, and accompanied by the conviction that the measure must be adopted as easily and soon as possible. As a result, as suggested by the JURI rapporteurFootnote 58, the Parliament also called upon the Council (composed of the members representing participating States) to adopt a decision stipulating, as provided by article 333(2) TFEU, that it will act under the ordinary legislative procedure (co-decision with qualified majority voting at the Council) rather than the special legislative procedure normally applicable to measures regarding cross-border family law as per article 81(3) TFEU (consultation procedure with unanimity voting at the Council).Footnote 59 The Council however did not give effect to this recommendation: the 14 participating countries must now approve the Regulation implementing enhanced cooperation unanimously.Footnote 60

D. Implementation of Enhanced Cooperation in the Field of the Law Applicable to Divorce and Legal Separation

As regards the content of the enhanced cooperation, the JHA Council has simply ‘agreed on a general approach on key elements’ but requested ‘further examination of outstanding issues’.Footnote 61 The Commission's proposal for a Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation encompasses thirteen provisions, which do not depart substantially from the provisions contained in the choice of law chapter of the 2006 Rome III proposal.Footnote 62

1. Scope

A new chapter on the scope of the Regulation is inserted, which is made of two provisions. The first one, on the material scope, provides a definition of ‘participating Member State’ for the purpose of this Regulation and indicates that it ‘shall apply, in situations involving a conflict of laws, to divorce and legal separation’. The expression is not new (the Rome I Regulation also refers to situations involving a choice of law) and seems to imply that spouses involved in a purely domestic marriage (ie having as their common nationality that of the State in which they live) could by the mere fact that they designate a foreign law as applicable, render their divorce sufficiently international to be subjected to the proposed Regulation—indeed the optio juris can be made at any time until a court is seized (article 3(2)). Unlike in contractual situations, there is no need to specify that this choice would be limited by the application of mandatory rules as the party autonomy in the present context is inherently limited: spouses only have four alternative laws to choose from: the law of the State of their habitual residence, or of their last habitual residence (provided one of them still lives there), the law of the nationality of one of the spouses or the lex fori (article 3(1)). All of the connecting factors used are therefore linked to the nationality or habitual residence of the parties. However this does not prevent ‘agreed forum shopping’: a Maltese couple having always resided in Malta could well decide to choose German law as the law governing their future divorce. One of them would just have to move to Germany for enough time to establish a habitual residence there (thereby giving jurisdiction to German courts), thus circumventing the current prohibition of divorce applicable in Malta.

Article 2 further declares the universality of the choice of law rules, which shall apply whether or not they designate the law of a participating State. This provision, absent from the initial Rome III proposal, had been introduced as article 20 (c1) by the German and Portuguese Presidencies in the interim text of 2007. The dangers linked to universality, much debated in relation to the Rome III proposal, are nevertheless ‘mitigated’ by three, at times redundant, provisions: Article 3(1) specifies that the law chosen by the parties must be ‘in conformity with the fundamental rights defined in the treaties and in the Charter of Fundamental Rights of the EU and with the principle of public policy’; article 5 further reinforces that if the law chosen by the parties or applicable in the absence of choice ‘makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex’, the law of the forum will apply, and article 7 finally provides that the public policy exception remains applicable.Footnote 63

2. Uniform rules on applicable law and other provisions

The substance of articles 3 (choice of applicable law by the parties), 4 (applicable law in the absence of choice by the parties),Footnote 64 6 (exclusion of renvoi) and 7 (public policy) are largely unchanged compared to the 2006 Rome III and 2007 presidency texts, although the formulation of most of article 3 has been changed and a new sub-condition has been added to article 4. Taking account of the fact that a fraction of the participating States allow same-sex marriages and that another one, Malta, does not know the concept of divorce, the 2010 presidency text includes a new article 7a providing that ‘nothing in this Regulation shall oblige the courts of a Member State whose law does not provide for divorce or does not recognise the marriage in question (…) to pronounce a divorce by virtue of the application of this Regulation’. Article 8 refers to the situation of States with more than one legal system in the same terms as did the 2007 text.Footnote 65

The third chapter contains the ‘other provisions’: article 9 obliges the participating States to provide information on their national provisions relating to the form of choice of law agreements. Article 10 contains the transitional provisions. This article, which had no equivalent in the 2006 text, is reproducing article1a as introduced by the German and Portuguese Presidencies in 2007. Article 11 deals with the relationship of the Regulation with other instruments and article 12 provides when the Regulation shall be reviewed. That these two articles had no equivalent in the 2006 and 2007 texts should not surprise as the initial Rome III proposal was meant to amend the Brussels IIa Regulation which does encompass similar provisions. Article 20(c) of the 2006 proposal, which provided that ‘where a law of another Member State is applicable, the court may make use of the European Judicial Network in civil and commercial matters to be informed of its contents’ and had been subsequently deleted by the Council remains absent from the new proposed text. However its content is largely reproduced in Recital 12 while Recital 15 stresses the possible use of the EJN as an information tool for the parties.Footnote 66

E. Conclusions

As was the case with the initial Rome III proposal, it is not clear to what extent the introduction of harmonized choice of law rules is a suitable solution to difficulties linked to the jurisdictional framework established by the Brussels IIa Regulation. Further, mere identical rules on the applicable law may increase legal certainty only for spouses involved in relationships having links solely with participating States. If anything the proposed rules may increase the complexity of the situation of spouses linked (by way of nationality or residence) to both participating and non-participating States. As shown above, the lack of legal certainty will be particularly obvious where such parties choose the law applicable to their divorce or legal separation. Given that there are or may soon be common rules on applicable law concerning matrimonial propertyFootnote 67 and parental responsibility,Footnote 68 and given the existence of harmonized rules of jurisdiction in divorce and legal separation, was it really necessary (other than for political reasons) to activate enhanced cooperation solely for the area of the law governing the principle and grounds of divorce?

With the various opt-outs/opt-ins introduced by the Denmark and UK and Ireland protocols,Footnote 69 differentiation in the area of freedom, security and justice is already a reality, though very much an exception limited to a very small number of States. Will the introduction of enhanced cooperation in this field mark the beginning of the normalization of two-speed, geographically variable, rules of European private international law? While enhanced cooperation—despite its institutional drawbacks (enhanced cooperation measures are not part of the acquis,Footnote 70 and may be associated with a limited external competence) Footnote 71—may provide a chance for States to test the common rules,Footnote 72 will it not by the same token prevent the possibility to review EU-wide rules that would achieve the same results (eg: revision of Brussels IIa)? Enhanced cooperation should not be allowed to be used as a quick fix in dossiers bound by unanimity each time differences in values render the adoption of EU-wide rules difficult.Footnote 73 If a coherent and effective European private international law is to emerge, Member States must take the necessary time to reflect on alternative routes and solutions that would work for the whole of the EU.

Footnotes

n 8
n 7
n 16
n 25
n 7
ibid
ibid
n 24
n 25
n 50
n 16

References

1 Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, OJ C 19, 23.1.1999 para 39; The Hague Programme: Strengthening freedom, security and justice in the European Union, OJ C 53, 3.3.2005, 13.

2 Council Regulation (EC) 1347/00 of 29 May 2000 on the jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children, [2000] OJ L160, and Council Regulation (EC) 2201/03 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) 1347/00, OJ L338.

3 COM (2005) 82 final. The identified difficulties were linked to an insufficient autonomy afforded to spouses, a lack of legal certainty and predictability, results which did not necessarily correspond to the legitimate expectations of the of the citizens, risks of difficulties for European citizens living in third States and risks of rush to court.

4 COM (2006) 399 final.

5 In accordance with arts 1 & 3 of the Protocol on the Position of the United Kingdom and Ireland, annexed to the Treaty of Amsterdam, which provide that these countries in principle shall not take part in the adoption by the Council of proposed measures pursuant to title IV of the EC Treaty unless they notify they decision to opt-in to the adoption of a measure within three months of the presentation of the proposal to the Council.

6 McEleavy, P, ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?’ [2005] J Priv Int L 5–34CrossRefGoogle Scholar.

7 Fiorini, A, ‘Rome III—Choice of Law in Divorce: Is the Europeanization of Family Law Going Too Far?’ (2008) 22 International Journal of Law, Policy and the Family 192CrossRefGoogle Scholar ff.

8 2873rd Council Meeting Justice and Home Affairs, Luxembourg, 5–6 June 2008, C/08/146, 9956/08 (Presse 146) 22.

9 2887th Council Meeting Justice and Home Affairs, Brussels, 24–25 July 2008, C/08/205, 11653/08 (Presse 205) 23.

10 One of the reasons for this silence was the perceived need not to interfere with the debates surrounding the second Irish referendum (cf French National Assembly, Information Report No 2716 of 8 July 2010, p 46).

11 European Parliament, Hearing with Viviane Reding, 7 January 2010, CM 800797EN, p 6.

12 COM(2010) 104 final.

13 COM(2010) 105 final.

14 Above (n 8).

15 COM(2010) 104/2 final, Explanatory Memorandum, para 50, 12.

16 Which may be surprising given that divorce is prohibited in this country and in view of the fact that, in 2008, Malta had expressed doubts as to whether enhanced cooperation was appropriate in this field (cf Boele-Woelki, K, ‘To Be or Not To Be: Enhanced Cooperation in International Divorce Law Within the European Union’ (2008) 39 VUWLR, 787Google Scholarad notam).

17 3018th Council Meeting Justice and Home Affairs, Luxembourg, 3–4 June 2010, C/08/205, 10630/10 (Presse 161) p 17.

18 [2010] OJ L189.

19 As regards the third phase of the Economic and Monetary Union, special rules were drafted for the UK (which did not participate) and Denmark (which obtained a protocol providing that a referendum shall decide on its participation in the third stage); similarly the UK did not sign the Social Protocol annexed to the Maastricht Treaty (and abrogated by the Amsterdam Treaty).

20 ECJ Case 11/70, Internationale Handelsgesellschaft of 17.12.1970, ECR 1970, 1125; ECJ Case 34/70, Syndicat national du commerce extérieur des céréales et autres v ONIC of 17.12.1970, ECR 1970, 1233.

21 See C Guillard, Jurisclasseur Europe, Fasc 180—Coopérations Renforcées, para 6–7.

22 http://europa.eu/legislation_summaries/institutional_affairs/treaties/amsterdam_treaty/a28000_en.htm

23 Art 20:

1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 326 to 334 of the Treaty on the Functioning of the European Union. Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 328 of the Treaty on the Functioning of the European Union. 2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 329 of the Treaty on the Functioning of the European Union. 3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 330 of the Treaty on the Functioning of the European Union. 4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.

24 COM(2010) 104/2 final, Explanatory Memorandum, para 14 and 15, 4.

25 Fiorini (n 7) 194 ff.

26 The legislative initiative is under way as the Commission issued in 2006 a Green Paper on conflict of laws in matters concerning matrimonial property regimes (COM(2006) 400).

27 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Delivering an area of freedom, security and justice for Europe's citizens: Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, p 19.

28 It is not clear if one of these 14 States would be able to pull out of the enhanced cooperation mechanism. Greece withdrew its request to participate before the Commission submitted its proposal. Could it have done so after the publication of the proposals or indeed after the authorization to proceed was granted by the Council (art 329 TFEU)? The Treaties only refer to the situation whereby new States express the wish to participate (art 331 TFEU). It is submitted that where unanimity applies (as is in principle the case for measures concerning family law with cross-border implications—art 81(3) TFEU), the application a pari of art 327 should allow for a State to pull out (provided it does not lead to the total number of participating States falling below the minimum).

29 Philippart, E and Edwards, G, ‘The provisions on closer cooperation in the Treaty of Amsterdam: the Politics of Flexibility in the European Union’ [1999] JCMS 87Google Scholar ff.

30 http://www.delidn.ec.europa.eu/en/eu_guide/eu_guide_2.htm.

31 Council 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, [2009] OJ L7, p 1 ff: see arts 15, 16, 17 & 23. The same link is made in respect of the private international law rules of matrimonial property: see Commission Green Paper of 17 July 2006 on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition COM(2006) 400 p 9.

32 On the link between mutual trust and mutual recognition see Maduro, MP, ‘So Close and Yet So Far; the Paradoxes of Mutual Recognition’ (2007) 14 Journal of European Public Policy 1466Google Scholar ff.

33 The Regulation is in force in all EU Member States except Denmark. However Denmark notified the Commission of its decision to implement the contents of Regulation (EC) 4/2009 to the extent that this Regulation amends Regulation (EC) 44/2001: Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2009] OJ L149/80: as a result, the provisions of Regulation (EC) 4/2009 will be applied to relations between the Community and Denmark with the exception of the provisions in Chapters III and VII. The provisions in art 2 and Chapter IX of Regulation (EC) 4/2009, however, are applicable only to the extent that they relate to jurisdiction, recognition, enforceability and enforcement of judgments, and access to justice. By contrast the UK, which had initially refused to opt into the Maintenance proposal in 2006, notified the Commission of its intention to accept Regulation (EC) 4/2009, which was positively received by the Commission, Commission Decision of 8 June 2009 on the intention of the United Kingdom to accept Council Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L149/73.

34 Art 17.

35 Art 23.

36 Council Decision on the Conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations [2009] OJ L331/17; House of Commons, European Scrutiny Committee, 17th Report, Session 2008-9, item 4.

37 COM(2010) 104/2 final, para 34.

38 Commission staff working paper—Annex to the Green Paper on applicable law and jurisdiction in divorce matters COM(2005)82 final, SEC(2005)331.

39 COM(2010) 104/2 final, para 30.

40 Art 81 in conjunction with art 2(2) TFEU.

41 The terminology, referred to by the JHA Council authorising enhanced cooperation in Rome III on 3 June (3018th Council Meeting Justice and Home Affairs, Luxembourg, 3–4 June 2010, C/08/205, 10630/10 (Presse 161) at p 16), was first used by Chirac before the Bundestag in June 2000.

42 Article 43a TEU (Nice Treaty version): ‘Enhanced cooperation may be undertaken only as a last resort, when it has been established within the Council that the objectives of such cooperation cannot be attained within a reasonable period by applying the relevant provisions of the Treaties.’

43 Boele-Woelki (n 16) 784.

44 Action plan implementing the Stockholm Programme (n 25) 23.

45 COM(2005) 82 final, 3–6. The Green Paper also mentioned a further objective: to avoid difficulties for Community citizens living in a third State. This is an aspect of access to court which can only be attained through the amendment of jurisdictional rules (in particular the creation of subsidiary grounds of jurisdiction through a new Art 7 as proposed by the 2006 Rome III initiative).

46 COM(2010) 104/2 final, para 22 s, in particular 26 ff, and COM(2010) 105 final/2. 2 ff.

47 See on this point Fiorini (n 7) 194–199.

48 ibid 191–192.

49 ibid 184–186.

50 See Fiorini, A, ‘The Evolution of European Private International Law’ (2008) 57 ICLQ 976Google Scholar. The Commission is nevertheless of the view that the implementation of enhanced cooperation in the area of the law applicable to divorce and legal separation will serve to facilitate the proper functioning of the internal market by eliminating obstacles to the free movement of persons (COM(2010) 104/2 final at para 39). See also Meeusen, J, ‘‘What Has It Got to Do Necessarily with the European Union?’: International Family Law and European (Economic) Integration' (2006–2007) 9 Cambridge Yearbook on European Legal Studies 329CrossRefGoogle Scholar ff.

51 It would be very different if the Commission had chosen to reproduce the 2006 Rome III proposal more fully by keeping the jurisdiction chapter of the initial Rome III proposal. In this case, the proposed enhanced cooperation would have altered the acquis in particular vis à vis the changes made to arts 6 and 7 of the Brussels IIa Regulation.

52 COM(2010) 104/2 final, para 37.

53 In the present case the Commission delayed submitting the proposal after the initial request by over 18 months.

54 [2010] OJ C 15/128.

55 [2010] OJ L189/12.

56 According to the explanatory statement accompanying the recommendation of the Committee on Legal Affairs of the Parliament (A7-0194/2010): ‘We owe it to our citizens to do what we can in order to ensure that these intrinsically painful episodes in their lives are not made even more difficult to bear by the difficulties associated with the courts’ having to deal with the problems of applicable law, which are hard to comprehend even for many lawyers'.

57 It may nevertheless be noted that the Commission, Council and Parliament all stress that enhanced cooperation is open, at any time, to all Member States that wish to participate so as to avoid ‘avoid enhanced cooperation being perceived of and used as a tool for specific arrangements intended only for a restricted circle of countries’.

58 Who had already obtained from the Civil Liberties rapporteur that she forgo drawing up an opinion on this matter ‘in order to allow this procedure to be concluded as rapidly as possible’.

59 European Parliament legislative resolution of 16 June 2010 on the draft Council decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (09898/2/2010 – C7-0145/2010- 2010/0066(NLE)).

60 Council Decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 189, 22.7.2010, pp. 12–13, art 1.

61 3018th Council Meeting Justice and Home Affairs, Luxembourg, 3–4 June 2010, C/08/205, 10630/10 (Presse 161) 16.

62 The Presidency issued on 1 June 2010 an amended draft of the proposal, encompassing changes suggested by JHA Counsellors and Member States, 10153/10 JUSTCIV 106 JAI 464.

63 However Recital 21 indicates that ‘the courts should not be able to apply the public policy exception in order to disregard the law of another Member State when to do so would be contrary to the Charter of Fundamental Right of the EU’.

64 The new art 4 provides: ‘In the absence of a choice pursuant to Article 3, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seised; or, failing that, (b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that, (c) of which both spouses are nationals at the time the court is seised; or, failing that, (d) where the court is seised.’ The specification in (b) that the period of residence did not end more than one year before the start of the proceedings was absent from the 2006 & 2007 Rome III texts.

65 This provision was absent from the 2006 proposal.

66 It should also be noted in this context that Decision No 568/2009/EC amending Decision 2001/470/EC establishing an EJN in civil and commercial matters introduces in its new art 5(2)(c) the obligation for contact points to supply any information to facilitate the application of the law of a Member State that is applicable under EU (or international) instruments.

67 cf the planned proposal on matrimonial property, above (n 24) and (n 25).

68 1996 Hague Convention on of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

69 And their potential consequences regarding international instruments, as exemplified by the respective scope of the Maintenance Regulation and the Hague Protocol on Maintenance as shown above.

70 Art 20(4) TEU.

71 Fiorini (n 50) 983.

72 On the potential benefits of an experimental use of enhanced cooperation, see Boele-Woelki (n 16) 792.

73 It seems that there is much support for the use of enhanced cooperation as a means to ‘put important legislation into the fast lane’. The European Economic and Social Committee expressed this view in the strongest terms, stating that it ‘hopes that the enhanced cooperation procedure … will finally become part of the body of usual procedures, allowing Europe to move forward in areas requiring unanimity but where unanimity is not to be expected quickly. This will avoid bottlenecks or delays in the adoption of common legislation or measures and enable countries wishing to do so to cooperate more closely, despite the absence of unanimity or a quorum’ (Opinion of the EESC of 14 July 2010, CES 0975/2010, para 3.6). Some States are much more reserved. In particular Finland officially deplored that enhanced cooperation is used for the first time in the area of family law, an area so intimately linked to the fundamental values and traditions of Member States where the search for flexible solutions working for the whole of the EU should be favoured (Declaration of Finland to the COREPER of 5 July 2010, 11429/10 JUSTCIV 128 JAI 583).