80 Enhanced Co-operation — applicable
law in certain matrimonial matters
| (a)
(31450)
8143/10
COM(10) 104
(b)
(31451)
8176/10
COM(10) 105
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Draft Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.
Draft Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
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| Legal base | a) Article 329(1) TFEU; QMV; consent
b) Article 81(3) TFEU; unanimity; consultation
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| Document originated | a) and b) 24 March 2010
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| Deposited in Parliament | a) and b) 25 May 2010
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| Department | Ministry of Justice
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| Basis of consideration | EM of 25 May 2010 and Minister's Letter of 21 June 2010
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| Previous Committee Report | None
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| To be discussed in Council | Political agreement reached, Home Affairs Council 3-4 June 2010
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) and (b) cleared
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Background
80.1 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 judgments in matrimonial matters
and matters of parental responsibility. This Regulation does not,
however, determine the applicable law in relation to divorce proceedings.
80.2 Whether the law of the EU should also determine
rules on applicable law in divorce proceedings was a question
first broached 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
together with 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.
80.3 The Commission's original proposal for a Regulation
on choice of law in divorce (also known as Rome III) was published
in July 2006 (Document 11818/06). The United Kingdom did not opt
into this proposal, largely on the grounds that family courts
in the UK do not apply foreign law. The Government expressed concern
that applying the law of a foreign jurisdiction in the UK could
involve considerable practical difficulties, cause delay and increase
costs because it might be necessary to call expert evidence as
to the foreign law. During negotiation of the Rome III proposal
it became clear that some Member States had fundamental concerns
and the Justice and Home Affairs Council in June 2008 noted that
the necessary unanimity could not be reached.
80.4 Subsequently ten Member States (Austria, Bulgaria,
France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia
and Spain) addressed requests to the European Commission indicating
that they wanted to establish enhanced cooperation between themselves
in this area of law. They asked the Commission to submit a proposal
to that effect. Documents (a) and (b) are the Commission's response
to those requests.
The Document
80.5 Document (a) is a proposed Council Decision
to authorise enhanced cooperation in this area. The Commission
argues that the legal conditions for enhanced cooperation have
been met. As the Council had agreed that the objectives of the
original Rome III proposal could not be attained within a reasonable
period the Commission believes that the requirement under Article
20(2) of the Treaty on European Union that enhanced cooperation
be a last resort has been met. As ten Member States had made the
request the necessary requirement for the participation of at
least nine Member States has also been satisfied. The Commission
also considers that conflict of law rules in family law constitute
an "area" covered by the Treaties as required under
Article 329(1) of the Treaty on the Functioning of the European
Union (TFEU). By restricting the proposal to conflict of law rules
the Commission is satisfied that the proposed enhanced cooperation
would not affect the existing acquis, in accordance with Article
326 TFEU. It also believes that such a proposal will not undermine
the internal market and economic, social and territorial cohesion;
will not constitute a barrier to or discrimination in trade between
Member States or distort competition between them; and that it
would respect the competences, rights and obligations of those
Member States not participating under Articles 327 to 329 TFEU.
80.6 Document (b) is the associated proposed Council
Regulation that implements the enhanced cooperation in this area.
Unlike the original Rome III regulation this proposal covers only
applicable law rules. There are no provisions on jurisdiction.
The rules on applicable law are limited to divorce and legal separation
and do not apply to annulments. The proposal allows spouses to
select the law that will apply to their divorce from a range of
four possibilities, which bear a suitable connection to their
marriage. There is a specific requirement (contained in Article
3(1) of the proposal) that the law chosen must be in conformity
with fundamental EU rights. In the absence of a choice by the
parties the applicable law will be determined on the basis of
a scale of successive connecting factors, based in the first place
on the habitual residence of the spouses. Two particular safeguards
are introduced, applicable to all cases. Firstly, where the applicable
law makes no provision for divorce or does not grant the spouses
equal access to divorce or legal separation on grounds of their
sex, the law of the forum will apply. Secondly, a court can disregard
a foreign law where the application of that law would be manifestly
contrary to the public policy of the State of the court seized.
The two safeguards thus partly overlap.
The Government's view
80.7 In his Explanatory Memorandum the Lord Chancellor
and Secretary of State for Justice (The Right Hon Kenneth Clarke)
assures us that the Government does not intend to participate
in the enhanced co-operation measure. The Minister further comments
as follows:
"The UK did not opt in to the original proposal
on Rome III as family courts in the UK are not accustomed to applying
foreign law. There was concern that applying the law of a foreign
jurisdiction in the UK could involve considerable practical difficulties,
cause delay and increase costs because it might be necessary to
call expert evidence as to the foreign law. The Government wishes
the law of the forum to continue to apply to these categories
of cases in the UK. It therefore does not intend to participate
in the enhanced cooperation implementation measure.
"The Government considers that the legal requirements
for the use of enhanced cooperation have been met in the Commission's
proposals. In particular, as it is a requirement that any measure
on enhanced cooperation should not affect existing EU law the
Government is pleased to see that the Commission's proposal is
restricted to applicable law rules and especially does not include
rules on jurisdiction that could have affected the working of
Council Regulation (EC) 2201/2003. The Government also believes
that no significant legal issues arise in the use of enhanced
cooperation in this area. Therefore while it does not intend to
participate in the enhanced cooperation it will not object to
the authorising measure being agreed.
"The Government regrets that the speed with
which the Presidency has taken forward negotiations has meant
that the Scrutiny Committees have not been in a position to give
opinions on the Commission's proposals. While the UK did ask the
Presidency to allow more time for consideration, the momentum
from other Member States has meant that political agreement on
both is likely before the Committees are reconstituted. In such
circumstances the Government intends to abstain from the decision
on the authorising measure. As the Government has no plans to
participate in the implementing proposal the UK will not have
a vote. The Scrutiny Committees will note that the Government's
position is in line with the decision not to opt in to the original
Rome III proposal. However, as a decision to participate in the
enhanced cooperation may be made at a later date the Committees
will still have an opportunity to provide opinions on this matter."
80.8 Political agreement on both proposals was reached
without a formal vote at the Justice and Home Affairs Council
on 3-4 June. The Minister addresses this development in his subsequent
letter of 21 June. He informs us that in line with "the position
the UK had held for some time, namely that we had decided not
to participate in the original proposal in 2006" the Government
saw no reason "to prevent others who wished to proceed."
The Minister explains that whilst "a number of Member States
intervened to support the use of enhanced cooperation" others,
including the UK, made clear that they had Parliamentary scrutiny
reservations. Member States reached political agreement to authorise
enhanced cooperation without a vote. The Council also endorsed
a general approach on key points in the proposed implementing
Regulation.
80.9 Although the UK is not participating in the
planned enhanced cooperation, the Minister nevertheless provides
a brief update on the legal and political developments regarding
the underlying civil judicial cooperation measure. The Minister
informs us that the number of Member States interested in the
measure has increased to 14 (Austria, Belgium, Bulgaria, France,
Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal,
Romania, Slovenia and Spain). He adds:
"In the European Parliament the JURI (Legal
Affairs) Committee gave its unanimous support for the proposed
authorisation Decision and the LIBE (Civil Liberties, Justice
and Home Affairs) Committee has also indicated its approval. The
Parliament confirmed its support at its plenary session on 16
June.
"For your information I enclose copies of the
latest texts of each of these proposals. The changes that have
been agreed to the proposed authorisation Decision are mainly
technical. You will see that further changes will be needed to
reflect the full list of Member States that have now agreed to
participate in the enhanced cooperation.
"The changes to the proposed implementing Regulation
are also mainly technical in nature and once again amendments
will be necessary to ensure the full list of participating Member
States is recorded (Recital 6). The main substantive changes are
the introduction of Recital 10a which states that national law
will determine how to deal with cases of multiple nationalities;
Recital 21a and Article 7a which clarify that a Member State whose
law does not provide for divorce or does not recognise the marriage
in question will not be required to pronounce a divorce under
the Regulation; Article 1(2) which clarifies the process which
will allow Member States to join the enhanced cooperation later;
and Article 3(2a) which stipulates that if the law of the forum
allows, parties may designate the law applicable during the course
of proceedings. Negotiations on this proposed Regulation will
continue and are likely to conclude under the forthcoming Belgian
Presidency. I shall keep your Committee informed of any significant
further developments."
Conclusion
80.10 We thank the Minister for his detailed comments.
We broadly share the Government's assessment of the two proposals
and support the Government's decision not to opt in to the enhanced
co-operation measure.
80.11 We note that the Government does not directly
express a view regarding the test for compliance with the subsidiarity
principle and in particular on the issue of whether conflicts
of law in this area can only be effectively resolved by Union
action. We would welcome it if the Minister could address the
question of compliance with the subsidiarity principle directly
and in greater detail in future relevant cases. As the United
Kingdom will not be participating in this measure, failure to
do so in this case does not affect our decision to clear both
proposals.
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