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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.

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

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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).