Raising concerns of a “two speed” Europe, a group of EU Member States has decided to proceed with further EU integration having decided to go ahead with enhanced cooperation to by-pass the veto of other Member States in order to adopt common rules to designate the law applicable to cross border divorce cases. The Council Regulation 2201/2003, the so called Brussels II Regulation, provides for rules on jurisdiction and on recognition and enforcement of judgements in matrimonial matters but the applicable law is determined according to the domestic conflict of laws rules.
In 2006, the European Commission presented a proposal for a regulation on Applicable law and Jurisdiction in Matrimonial Matters, amending the Brussels II Regulation. The so called Rome III proposal would have introduced the possibility for the spouses to determine by common agreement the competent court in proceedings concerning divorce and legal separation. The aim of the Rome III Regulation was to harmonise Member States conflict of laws. But, the application of non-national law in domestic courts is a very controversial issue.
The Justice and Home Affairs Council have failed to reach an agreement on the draft proposal. The Rome III was aiming at setting up rules for determining which law is applicable in divorce cases when the court is in a different member state from the country of at least one of the spouses. There were different opinions, especially between those Member States which apply lex fori and those which apply conflict of law rules to determine applicable law and apply foreign law within their systems. The UK as well as Cyprus, Denmark, Finland, Ireland, and Sweden apply the lex fori – hence, once jurisdiction is determined the courts apply domestic rules to a divorce case. Obviously, the Commission proposal could have entailed substantial changes in the laws of several Member States especially in those which apply lex fori. Consequently, the UK has decided not opt into such proposal. Moreover, Rome III could apply to cases with no connection with the internal market as it extends applicable law to non-Member State law. Several Member States could not support the measure on the grounds of subsidiarity and proportionality principles. Family and marriage are very sensitive issues and they are at the core of Member States’ traditions.
Hence, the draft proposal could not achieve unanimous support. The solution found at the Council meeting, in 2008, was to proceed through enhanced cooperation. So, in order to by-pass Sweden’s veto, a group of ten EU Member States have written to the European Commission formally requesting it to prepare a legislative proposal for enhanced cooperation, and for the first time activated this mechanism.
Last March, the Commission presented a proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. The Commission present proposal is very similar to the Rome III. The parties would be able to choose which law applies to their divorce or legal separation. The choice of the party is not unrestricted – there must be a “substantial connection” with the Member State in question, hence the Member State chosen must be the place of their common habitual residence, the place of the last common habitual residence of the parties, the Member State of nationality of one of the spouses, or the law of the forum.
The proposal also sets up criteria to determine the applicable law in cross-border divorces in case of absence of choice by the spouses. It defines several connecting factors, hence a cross border divorce is to be ruled by the law of the country of the spouses common habitual residence, or failing that, by the law of the country of their last common habitual residence if one of them still resides there, or failing that, the law of the state of common nationality of the parties or failing that, by the law of the forum.
The Commission has stressed that the draft proposal is meant to be of universal application – hence the conflict-of-law rule can designate the law of a Member State of the European Union or the law of a third state. The Commission has also introduced a uniform rule on residual jurisdiction aimed at ensuring access to court for spouses who live in a third countries but would like to bring proceedings in a Member State with which they have a close connections: they are nationals or live in a country in which they have resided for a certain period.
The enhanced cooperation has already been requested by 14 member states. Austria, Bulgaria, France, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain Germany, Belgium, Latvia, Malta and Portugal. Greece has withdrawn from this request. The Commission proposal will apply solely to these Member States. But other member states may decide to participate.
Authorisation to establish enhanced cooperation would be granted by the Council, acting by a qualified majority on the Commission’s proposal and after the European Parliament’s consent. Hence, other member states are not able to veto and prevent other member states to press ahead with further integration.
On 4 June, the JHA Council reached a qualified majority agreement on a decision authorising enhanced cooperation on the law applicable to divorce and legal separation. They also reached on a general approach on key elements of the proposal. On 16 June, the European Parliament will vote on the implementation of enhanced cooperation procedure regarding the law applicable to divorce and legal separation, giving, therefore, its consent.
Such a move will eventually lead to a “two-speed Europe.” The provisions on enhanced cooperation had never been put into effect – therefore, their possible outcome is still being debated. But, one thing is for sure, enhance cooperation reinforces the integration process.
