European Scrutiny Committee Contents

80 Enhanced Co-operation — applicable law in certain matrimonial matters




COM(10) 104




COM(10) 105

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.

Legal basea) Article 329(1) TFEU; QMV; consent

b) Article 81(3) TFEU; unanimity; consultation

Document originateda) and b) 24 March 2010
Deposited in Parliamenta) and b) 25 May 2010
DepartmentMinistry of Justice
Basis of considerationEM of 25 May 2010 and Minister's Letter of 21 June 2010
Previous Committee ReportNone
To be discussed in CouncilPolitical agreement reached, Home Affairs Council 3-4 June 2010
Committee's assessmentLegally and politically important
Committee's decision(a) and (b) cleared


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."


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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