8 Jurisdiction and applicable law in
matrimonial matters
| (27727)
11818/06
+ ADDs 1-2
COM(06) 399
| Draft Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters
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| Legal base | Articles 61(c) and 65 EC
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| Department | Constitutional Affairs
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| Basis of consideration | Letter of 15 February 2007
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| Previous Committee Report | HC 34-xxxvii (2005-06), para 4 (11 October 2006)
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| To be discussed in Council | Not yet fixed
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
8.1 The 1968 Brussels Convention (now Council Regulation 44/2001)
prescribes rules on jurisdiction for most civil and commercial
matters but does not apply to matrimonial proceedings. Council
Regulation 2201/2003 sets out rules concerning jurisdiction and
the recognition and enforcement of judgements in matrimonial matters
and matters of parental responsibility. This Regulation does not,
however, determine the applicable law in relation to divorce proceedings.
8.2 Whether Community law should also determine rules
on applicable law in divorce proceedings was a question first
mentioned in the Vienna Action Plan in December 1999. The Hague
Programme, adopted by the European Council in November 2004, called
upon the Commission to bring forward a number of proposals in
the area of matrimonial law including, in 2005, a draft instrument
on the recognition and enforcement of decisions on maintenance
and proposals on the conflict of laws in matters relating to divorce.
In April 2005 the Commission published a Green Paper on applicable
law and jurisdiction on divorce matters.
8.3 In its response to the Commission's Green Paper
the Government expressed reservations about the practical difficulties
involved in applying systems of foreign law in matrimonial proceedings
in the Member States. The Government also questioned if the problems
identified by the Commission in its Green Paper might not be more
effectively addressed by revision of the existing jurisdictional
rules than by the introduction of new rules on applicable law.
We cleared the Green Paper from scrutiny on 20 July 2005 expressing
agreement with the Government's reservations.
The draft Council Regulation
8.4 The proposed Council Regulation follows on from
the Commission Green Paper on applicable law and jurisdiction
in divorce matters and is intended to simplify and facilitate
divorce proceedings between EU citizens of different nationalities
or resident in different Member States.
8.5 Under the existing jurisdiction rules of Council
Regulation 2201/2003 (the "Brussels II Regulation")
"international" couples who wish to divorce may choose
between several alternative grounds of jurisdiction in initiating
proceedings in a court in an EU Member State. Once divorce proceedings
have been initiated before a court in the European Union, the
applicable law is then determined according to the domestic conflict
of laws rules. There are, however, significant differences between
the conflict of laws rules of the various Member States.
8.6 The proposal would amend and complement the existing
regime under Regulation 2201/2003 in the following respects:
- First, the proposal would introduce
a new Article 3a into the Brussels II Regulation which would permit
the parties to agree to a jurisdiction on the grounds of substantial
connection with that jurisdiction. In addition to the grounds
of jurisdiction already listed in the Brussels II Regulation,
the proposal envisages that substantial connection may be established
on the grounds that the place in question was the last common
habitual residence for a minimum period of three years or where
one of the spouses is a national of that Member State or, in the
case of the United Kingdom and Ireland, has his or her "domicile
in one of the latter countries". Any agreement conferring
jurisdiction must be in writing and signed by both parties. It
can be entered into at any time before proceedings are initiated
anywhere in the EU;
- Secondly, the proposal would introduce a new
residual jurisdiction rule under Article 7 of the Brussels II
Regulation. The proposed Article 7 is intended to close the single
"jurisdiction gap" which the Commission suggests exists
under the current rule, and which (it is suggested) can lead to
situations where no court would have any jurisdiction to deal
with a divorce case. In such situations the proposed new Article
7 would allow courts of a Member State to establish jurisdiction
simply on the basis of common previous habitual residence in the
territory of their Member State or the fact that one spouse is
a national of that Member State, or, in the case of United Kingdom
or Ireland, if he or she is domiciled in one of these countries;
- Thirdly, the proposal would permit spouses to
choose the applicable law. Such agreement would again have to
be in writing and signed by both spouses, and could likewise be
entered into at any time before proceedings are initiated anywhere
in the EU; and
- Finally, the proposal would harmonise the conflict
of laws rules operating in the absence of choice by the parties.
This would mean that the same rules would determine the applicable
law in divorce cases involving spouses from more than one Member
State.
The Government's view
8.7 When we originally looked at this proposal in
October 2006 we reminded the Government of the reservations it
had originally expressed in relation to the Green Paper underlying
this proposal. We also asked the Government to clarify:
- if the Government's thinking
were still consistent with the views expressed in relation to
the Green paper and, if not, if the Government intended to opt
into this proposal;
- how the proposed harmonisation of the conflict
of laws rules in the absence of choice by the parties could be
regarded as "necessary for the proper functioning of the
internal market" for the purposes of Article 65 EC;
- the compatibility of the proposal with a principle
of subsidiarity; and, finally,
- if, given that legal problems associated with
'international marriages' are not restricted to marriages between
EU nationals, the Government agreed that the Hague Conference
on private international law could deal more appropriately with
this issue.
8.8 The Parliamentary Under-Secretary of State in
the Department for Constitutional Affairs (Baroness Ashton) replied
to our questions on 15 February 2007. Her reply reads as follows:
"I am writing at this juncture to bring the
Committee up to date with the Rome III proposal on divorce.
"I am aware that I have not written to you since
your helpful comments in October. As you know, the deadline by
which the Government had to decide whether to opt-in to the proposal
at fell at the end of October. I can confirm that the Government
decided not to opt-in on this occasion under the terms of our
protocol to Title IV of the TEC. It is a matter of record that
the Republic of Ireland also decided not to opt-in.
"You raised a question about how proposed harmonisation
of conflict of law rules in the absence of choice by the parties
could be necessary for the proper functioning of the internal
market. The Commission argues that the proposal would facilitate
the proper functioning of the internal market since 'it will eliminate
any obstacles to the free movement of persons who are currently
faced with problems due to the remaining differences between the
national laws with regard to applicable law and jurisdiction in
matrimonial matters.' The Commission has, however, brought forward
no evidence to demonstrate that this is a real problem, and the
Government remains to be satisfied that such rules are genuinely
necessary for the proper functioning of the internal market.
"You asked what test the Government view thought
might be appropriate concerning the compatibility of the proposal
with the subsidiarity principle. This is linked with the question
of the adequacy of Article 65 as a Treaty base. The Government
would be satisfied that the subsidiarity principle had been satisfied
on this occasion if it were shown convincingly that the proposal
pursued a Community objective, such as the functioning of the
internal market. As I have said, the Government is not persuaded
of this.
"We share the concerns expressed by the Committee
about complexity and expense of proceedings likely to result from
applying foreign law in the UK courts.
"Lastly, you asked whether problems associated
with 'international marriages' might not be better dealt with
in the Hague Conference, having regard in particular to the fact
that any such problems are not limited to persons of European
nationalities. The Government is a strong supporter of the work
of the Hague Conference, but before lending explicit support to
this idea we would want to see a scoped out proposal demonstrating
that there was need for an international instrument in this area
and that there was a reasonable likelihood of agreement.
"The UK is keeping a watching brief as the proposal
is considered in the Council working group. Other delegations
are also experiencing difficulties with the proposed rules on
applicable law but do not share our ability not to opt-in. There
must be a real risk that one or more of them may veto the proposal,
given the requirement of unanimity unless some accommodation can
be found."
Conclusion
8.9 We thank the Minister for her detailed and
reassuring answers. We welcome the Government's approach and have
no further questions to the Minister. Accordingly, we are content
to clear the document.
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