Recitals Brussels II Regulation (2003)

Borras Report 1998

I. BACKGROUND TO THE CONVENTION

1. European integration was mainly an economic affair to begin with and for that reason the legal instruments established were designed to serve an economic purpose. However, the situation has changed fundamentally in recent times so that integration is now no longer purely economic and is coming to have an increasingly profound effect on the life of the European citizen, who finds it hard to understand that he encounters problems in matters of family law while so much progress has been made in property law. The issue of family law therefore has to be faced as part of the phenomenon of European integration. We only need to look at the questions put in the European Parliament not only on dissolution of marriages but also on more general aspects of family law (marriage contracts, paternity, child abduction, adoption, etc.). This Convention is a first step, and a positive and decisive one, along this new road and it may open the way to other texts on matters of family law and succession (Borras (1998) C 221/28).

2. This Convention was made possible by the Maastricht Treaty, which opened up new channels for judicial cooperation in civil matters under Article K.3 (see Section II, paragraph 11). Until then, what limited scope there was depended only on Article 220 of the Treaty establishing the European Economic Community. In that Article, the Member States undertook, so far as is necessary, to enter into negotiations with each other with a view to securing for the benefit of their nationals the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards. In a note sent to the Member States on 22 October 1959 inviting them to commence negotiations, the Commission pointed out that: ‘a true internal market between the six States will be achieved only if adequate legal protection can be secured. The economic life of the Community may be subject to disturbances and difficulties unless it is possible, where necessary by judicial means, to ensure the recognition and enforcement of the various rights arising from the existence of a multiplicity of legal relationships. As jurisdiction in both civil and commercial matters is derived from the sovereignty of Member States, and since the effect of judicial acts is confined to each national territory, legal protection and, hence, legal certainty in the common market are essentially dependent on the adoption by the Member States of a satisfactory solution to the problem of recognition and enforcement of judgments’(Borras (1998) C 221/28) .

Various Conventions have been concluded directly or indirectly on the basis of Article 220 of the Treaty establishing the European Economic Community. The major achievement in judicial matters was the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters and the various amendments resulting from enlargement of the Community. Article 1(2) of that Convention excludes a range of matters from its scope. These exclusions were based on a great variety of grounds and some of the matters excluded have been dealt with in other Conventions, for instance the Convention on insolvency proceedings signed in Brussels on 23 November 1995 (Borras (1998) C 221/28).

In addition, the 30 years which have passed since its conclusion and the practical application of the Brussels Convention have led to the initiation of a process of revision of the latter, carried out at the same time as that of the Lugano Convention of 16 September 1988 (the so-called parallel Convention). As only preliminary studies have been carried out and only two meetings have been held of the ad hoc Working Party set up to prepare the revised text, it has not been possible to take account of those proceedings in the drafting of this Convention. There is still the possibility, therefore, of adapting this Convention to the revised Brussels Convention at a later date. As the situation changed, it was normal that Member States should endeavour to respond to European citizens’ new requirements and this Convention is the latest such endeavour (Borras (1998) C 221/28).

The desire to extend the 1968 Brussels Convention to family issues is a recent development and the grounds are twofold.

3. In the first place, the grounds for exclusion from the 1968 Brussels Convention need to be recalled. The Jenard report (explanatory report on the original version of the Convention) justified the exclusion of matters relating to natural persons as follows:

‘Even assuming that the Committee managed to unify the rules of jurisdiction in this field, and whatever the nature of the rules selected, there was such disparity on these matters between the various systems of law, in particular regarding the rules of conflict of laws, that it would have been difficult not to re-examine the rules of jurisdiction at the enforcement stage. This in turn would have meant changing the nature of the Convention and making it much less effective. In addition, if the Committee had agreed to withdraw from the court of enforcement all powers of examination, even in matters not relating to property rights, that court would surely have been encouraged to abuse the notion of public policy, using it to refuse recognition to foreign judgments referred to it. The members of the Committee chose the lesser of the two evils, retaining the unity and effectiveness of their draft while restricting its scope. The most serious difficulty with regard to status and legal capacity is obviously that of divorce, a problem which is complicated by the extreme divergences between the various systems of law.’

The 1968 Convention is therefore the ‘general convention’ on recognition and enforcement, under the mandate in Article 220 of the Treaty establishing the European Economic Community; it does not exclude any civil or commercial matter per se and could have dealt with status and legal capacity. They were excluded because of their complexity and the fact that they did not directly affect economic integration (Borras (1998) C 221/29).

4. In the second place, in family law the major issue is divorce, matrimonial matters as dealt with in this Convention. It should be noted that the Jenard report refers to the ‘extreme divergences’ between systems of law at a time when there were only six Member States; those divergences are clearly greater now that there are 15 Member States, so that the difficulties facing the Working Party were greater. These are not minor differences; some of them even have constitutional implications. In other cases the difficulties affect the recognition or non-recognition of the various forms of civil status affected by the Convention (for instance, separation and annulment are unknown in the national law of Finland and Sweden). Even among States which have all the various forms covered, there are significant differences in the rules (grounds, prior separation requirement, etc.). Neither the time required to achieve a convention nor the compromise solutions which had to be worked out in some instances can therefore come as a surprise. The exclusion of this matter from the 1968 Convention and the preparation of this Convention highlight the difference between family litigation and property litigation. European integration has advanced considerably in the 30 years since the 1968 Brussels Convention was drawn up. The achievement of free movement of persons and establishment of increasingly frequent family links between individuals who are nationals or residents of different countries demanded a judicial response which is provided by this Convention, taking account of the various elements involved (Borras (1998) C 221/29).

5. A full discussion was held on the question whether a convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters was necessary. Some Member States, which were parties to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations, expressed satisfaction at the results chieved by applying it. Other Member States, however, which were not parties to the 1970 Hague Convention, declared that they were not prepared to become parties to it (Borras (1998) C 221/29-30) .

There were three fundamental arguments in favour of considering the advantages of drawing up a new convention in a European context:

(a) the desire to introduce uniform standards for jurisdiction in matrimonial matters;

(b) the need to introduce modern rules for the recognition and enforcement of judgments on annulment, divorce and separation among the Member States of the European Union, establishing a uniform procedure;

(c) the avoidance of parallel procedures on matrimonial matters in different Member States, establishing rules on lis pendens, an innovation that on its own would be justification for the Convention and would contribute to the prevention of contradictory rulings.

For all those reasons the Council decided to initiate negotiations on the conclusion of a convention on these matters. It should also be pointed out that Article 18 of the 1970 Hague Convention allows the States party to it to conclude conventions on those matters (Borras (1998) C 221/30).

6. The initial purpose of the Convention was to extend the 1968 Brussels Convention to cover matrimonial matters. Hence the starting-point for the preparation of this Convention lies in the text of the 1968 Convention which is cited in the preamble. It would have been impossible to disregard such an important background text which has been demonstrably successful and is accompanied by extensive case-law from the Court of Justice of the European Communities, making it possible to pinpoint its most controversial features in the section applicable to this text. Nevertheless, the differing matters covered in both texts result in significant differences on a number of points (e. g. the fact that there is no general forum and the absence of any hierarchy in the grounds of jurisdiction) whereas in other areas the rules are more convergent (as for lis pendens and automatic recognition). The outcome is therefore a separate convention although the objectives pursued are the same: to unify the rules on international jurisdiction and to facilitate international recognition and enforcement of judgments.

Unless stated otherwise, the identical terms in the 1968 Brussels Convention and in this Convention must in principle be considered to mean the same thing and therefore the case-law of the Court of Justice of the European Communities must be taken into consideration. It should be noted that on provisions for which the wording is the same as in the Brussels Convention, there is little to add to the explanatory reports on the 1968 Convention and the subsequent amendments thereto. It seemed advisable, nevertheless, to reproduce the necessary sections of the earlier report in this one for ease of consultation by the judiciary, who are thus not obliged to consult several different texts in conjunction (Borras (1998) C 221/30).

7. In the early 1990s consideration was given in the context of European political cooperation to the viability of a convention at European level on proceedings to dissolve or loosen the marriage bond. On the basis of a questionnaire drawn up by the United Kingdom Presidency in 1992 and a synthesis of the replies prepared by the Danish Presidency in the first half of 1993, the Member States conducted an initial exchange of views on the matter. Under the Belgian Presidency in the second half of 1993, before the Treaty on European Union came into force, Professor Marc Fallon was invited to a meeting of the Working Party in his capacity as Secretary of the European Group on Private International Law and reported on the Heidelberg Project, which was prepared by that Group and is so called because it was approved in Heidelberg on 2 October 1993. The European Group, as a group of specialists whose sole objective is to make proposals in the fields in which Community law and private international law come together, approved a proposal for a convention on jurisdiction and the enforcement of judgments in family and succession matters which was of considerably broader scope than this Convention. The need to achieve results and developments in the studies carried out made it necessary to focus the work within the European Union on a more limited range of subjects (Borras (1998) C 221/30-31).

8. At its meeting in Brussels on 10 and 11 December 1993 the European Council considered that the entry into force of the Treaty opened up new prospects for the European citizen, requiring additional work to be carried out in respect of certain aspects of the citizen’s family life. To that end, the Council considered that examination of the possibilities of extending the scope of the 1968 Brussels Convention to matters of family law should be actively pursued. In the first half of 1994 the Greek Presidency circulated a questionnaire to the Member States to identify the general outline of what the Convention should contain. In the light of the replies received, a synthesis was drawn up and used as a basis for the instruction to draw up a draft convention given by the European Council in June 1994. In the second half of 1994 the German Presidency presented a draft convention covering only divorce, legal separation and marriage annulment. The Spanish and French delegations then requested the inclusion of child custody within the scope of the convention (Borras (1998) C 221/31).

9. When describing the background to the Convention, we cannot fail to mention the contacts maintained with the Hague Conference on Private International Law. While the European Union was preparing the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, the Hague Conference on Private International Law was revising the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants. That situation must be taken into account in relation to the possibility of a provision in the new Hague Convention relating to the competence of the authorities of the country of divorce to adopt measures to protect the children, although differing working methods require different approaches. Thus, while the European Union has observer status at the Hague Conference (so that representatives of the Commission and the Council Secretariat are attending the proceedings in The Hague), the reverse is not possible under the Treaty establishing the European Community and the Treaty on European Union. For that reason, beginning with the French Presidency in the first half of 1995, the Troika, the Council Secretariat and the Commission, alongside the official meetings, held informal meetings with the Permanent Bureau of The Hague Conference on Private International Law in view of the links between the texts under preparation in both forums. The initial problems regarding the relationship between the two Conventions under preparation were thus resolved and the result is visible both in the Convention which is the subject of this report, concluded between the Member States of the European Union, and in the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. At the Council of Ministers of Justice and Home Affairs on 25 September 1995, it was agreed that ‘it was essential to make provision for custody of children in the context of these proceedings, in the form of measures supplementary to those laid down in the Hague Convention’. Therefore once the Hague Convention had been concluded, its provisions were taken into account by the Working Party, particularly those directly affecting the Convention now under consideration, i. e. Article 10 regarding the jurisdiction of the courts deciding on the annulment of a marriage, an application for divorce or legal separation of the parents to take measures directed to the protection of the child and Article 52 regarding the relationship between the Hague Convention and other Conventions, and particularly the possibility for one or more Contracting States to conclude agreements which contain, in respect of children habitually resident in any of the States Parties to such agreements, provisions on matters governed by the Hague Convention (Borras (1998) C 221/31).

10. Preparation of the text of the Convention became the responsibility of the Working Party on Extension of the Brussels Convention which has been meeting on a constant basis since 1993. The negotiations were lengthy and on some points particularly difficult. At the Council meeting in December 1997, under the Luxembourg Presidency, final political agreement was reached on a series of provisions on the basis of the final compromise solution proposed by the Presidency. In broad terms, that is the history of the laborious but fruitful work which went into preparing the Convention now before us (Borras (1998) C 221/32).

II. GENERAL LAYOUT OF THE CONVENTION

11. The first point of interest is the legal basis for the text. When the Brussels Convention was concluded in 1968 only Article 220 of the Treaty was available as a basis. At present we have, in addition to that Article, another provision which can serve as a legal basis for the Convention: the new provision introduced by the Maastricht Treaty, i. e. Article K.3 in conjunction with Article K.1. In point 6 of Article K.1, ‘judicial cooperation in civil matters’ is listed as one of the ‘matters of common interest’ referred to in the introductory wording to that Article for the purposes of achieving the objectives of the Union. Such cooperation undoubtedly contributes to the achievement of one of the objectives of the Union, ‘to develop close cooperation on justice’ (Article B). Dealing in a precise and appropriate manner with the matter which is the subject of the Convention is undoubtedly a significant achievement in terms of provisions on judicial cooperation between the Member States of the European Union in civil matters. Accordingly Article K.3 of the Treaty was chosen as the legal basis for the Convention although Article 220 would also have been a theoretically possible legal basis. Finally, it should be pointed out that the legal basis has consequences for the drafting process, but not for legal practitioners or for the citizen as regards the application of the Convention (Borras (1998) C 221/32).

In line with the provisions of Title VI, the Commission was fully associated with the proceedings of the Working Party, that is to say it took an active, positive part in the preparation of the text. At the close of the Working Party’s proceedings, the Presidency, in accordance with Article K.6 of the Treaty on European Union, presented the text of the draft Convention for consideration by the European Parliament. The European Parliament delivered its opinion in the plenary session of 30 April 1998. During May 1998 the relevant Council bodies studied the opinions expressed by the European Parliament (Borras (1998) C 221/32).

On 28 May 1998 the Council approved the Convention, signed on the same day by the representatives of all the Member States.

12. The concerns and the thinking underlying the preparation of the Convention are clear from the Preamble, which highlights four aspects:

1. The desire to introduce uniform modern standards for jurisdiction on annulment, divorce and separation and to facilitate the rapid and automatic recognition among Member States of judgments on such matters given in the Member States.

2. The importance of laying down rules of jurisdiction concerning parental responsibility over the children of both spouses on the occasion of such proceedings and therefore simplifying the formalities governing the rapid and automatic recognition and enforcement of the relevant judgments.

3. The need to bear in mind the principles on which the 1968 Brussels Convention is based; this Convention is therefore influenced by the Brussels Convention but differs in so far as the matter covered is different.

4. The possibility of giving jurisdiction to the Court of Justice of the European Communities to interpret the provisions of the Convention (Borras (1998) C 221/32-33).

13. Two characteristics of the Convention need to be emphasised:

A. The Convention is what is known as a ‘double treaty’ in that it contains rules of direct jurisdiction and also rules for the recognition and enforcement of foreign judgments. It is modelled on the Brussels Convention, which was at the time a revolutionary step, but it introduces substantial changes. Rules of international jurisdiction are thus laid down which have to be respected by the court of origin and may lead it to decline jurisdiction where it does not consider that jurisdiction lies with it under the rules of the Convention. The citizen thus enjoys legal certainty and a climate of mutual confidence is established allowing the introduction of a system of automatic recognition and a greatly simplified enforcement system (Borras (1998) C 221/33).

B. Once the Convention has been adopted in the Member States in accordance with constitutional requirements and has entered into force in each Member State, it will become applicable ex officio. This means that it is compulsory to apply all the rules in the Convention and that, between the States party to it, those rules will, as from the date of entry into force, replace all other national or contractual provisions, subject only to the limitations resulting from the Convention itself and within the relevant constitutional framework. The mechanism is thus at once founded on and incorporated into each Member State’s national legislation. Situations not covered by the Convention will therefore be subject to national law (Borras (1998) C 221/33).

14. The Convention is divided into seven titles, as follows:

• Title I: Scope
• Title II: Jurisdiction
• Title III: Recognition and enforcement of judgments
• Title IV: Transitional provisions
• Title V: General provisions
• Title VI: Court of Justice
• Title VII: Final provisions

It will be obvious that the core of the Convention, and therefore the section which gave rise to most discussion, lies in Titles II and III (jurisdiction and recognition and enforcement of judgments). Discussion of those issues also reflected, to a large extent, the whole debate on scope (Title I) (Borras (1998) C 221/33).

15. Title I of the Convention (scope) contains only one Article which was the subject of lengthy discussion which had to be resolved by a political agreement setting the material scope of the Convention to include proceedings on divorce, legal separation or marriage annulment and proceedings relating to parental responsibility for the children of both spouses on the occasion of the application (Borras (1998) C 221/33).

16. Title II contains rules of direct international jurisdiction, i.e. rules which must be respected by the court of origin prior to a judgment in matrimonial proceedings. Such provisions do not, however, affect the distribution of territorial jurisdiction within each State or the situations of States the legal systems of which have not been unified. The existence of direct jurisdiction in matrimonial matters is undoubtedly the major innovation in this Convention. Conventions dealing with such matters are normally confined to the recognition and enforcement of judgments and the concomitant inclusion of rules on indirect jurisdiction, that is to say the examination of the jurisdiction of the court of origin to be made by the court of the State in which recognition is sought. This Title is divided into four sections:

(a) Section 1 contains the provisions on grounds of jurisdiction, that is to say the grounds of jurisdiction stricto sensu (Articles 2 to 8). The central provision is Article 2 which establishes the grounds in matrimonial matters and it is supplemented by Article 3 on parental responsibility and Article 4 regarding the particular rule relating to the 1980 Hague Convention. The text then deals with counterclaims (Article 5) and conversion of legal separation into divorce (Article 6) and Article 7 covers the exclusive nature of jurisdiction under Articles 2 to 6 while Article 8 covers residual jurisdiction and is parallel to the provision in Article 4 of the 1968 Brussels Convention.

(b) Section 2 (Articles 9 and 10) deals with examination as to jurisdiction in accordance with the grounds in the Convention and as to whether the respondent has been able to arrange for his defence.

(c) Section 3 (Article 11) deals with lis pendens and dependent actions.

(d) Section 4 (Article 12) deals with provisional and protective measures. 17. Title III is the logical consequence of Title II and deals with recognition and enforcement of judgments. At first sight, it might seem that once the subjects covered in the earlier Articles had been resolved, matters would be easy, but that was not the case. Discussions focused mainly on the effects of automatic recognition in relation to the civil-status records and the grounds of non-recognition and non-enforcement. In the same way, account had to be taken of the restriction of recognition to the dissolution of the link and its not affecting other matters (see paragraphs 22 and 64). The problem also affects the need for enforcement and the issue is in turn resolved in relation to the scope. The procedure for enforcement is similar to that in the Brussels Convention (Borras (1998) C 221/34).

18. Title IV contains the transitional provisions and Title V the general provisions while Title VI relates to interpretation by the Court of Justice and Title VII contains the final provisions (Borras (1998) C 221/34).

Commission's Memorandum 1999

1. GENERAL

1.1 Context

By Article 2 of the Treaty on European Union, the Member States set themselves the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country.

To establish such an area the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the sound operation of the internal market. Reinforcement of judicial cooperation in civil matters, which many believe has developed too slowly, represents a fundamental stage in the creation of a European judicial area which will bring tangible benefits for every Union citizen [(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, point 16: OJ C 19, 23.1.1999.]

The sound operation of the internal market creates a need to recognise and enforce judgments in matrimonial matters and in matters of parental responsibility. To this end, rapid procedures and legal certainty are of the essence at a time when the increasing frequency of family relations between persons having different nationalities or residing in different Member States inevitably leads to a growth in litigation.

1.2 Negotiation of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters

The need to draw up a Convention extending the 1968 Brussels Convention to matrimonial matters, initially excluded from its scope, was under consideration in the European Union for a long time.

At its meeting in Brussels on 10 and 11 December 1993 the European Council considered that the entry into force of the Treaty opened up new prospects for the European citizen, requiring additional work to be carried out in respect of certain aspects of the citizen's family life.

Following the meeting of the European Council on 10 and 11 December 1993, the Greek Presidency circulated a questionnaire to the Member States to identify the general outline of what the Convention should contain. In the light of the replies received, a synthesis was drawn up and used as a basis for the instruction to draw up a draft convention given by the European Council in June 1994. In the second half of 1994 the German Presidency presented a draft convention covering only divorce, legal separation and marriage annulment. The decision was subsequently taken to include parental responsibility for the children of both spouses within the scope of the convention.

On 28 May 1998, the Council adopted the Act drawing up the Convention signed the same day by the Representatives of all the Member States. The Act was accompanied by a series of Declarations [(2 OJ C 221, 16.7.1998, p. 27] .(COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999 P. 0001 - 0010)

2. PROPOSAL FOR COUNCIL REGULATION

As the Convention of 28 May 1998 was not ratified before the Amsterdam Treaty entered into force, its provisions are not applicable. The Convention was one of only two instruments relating to judicial cooperation adopted under the Maastricht Treaty. Its purpose is to remove difficulties encountered by the public in their daily life. Transposing it into a Community instrument will have the effect, among others, of ensuring that it enters into operation on the same early date, known to all.

2.1 Subject-matter

The purpose of this proposal for a Regulation is to uniformise the rules of private international law in the Member States relating to jurisdiction and to improve the recognition and enforcement of judgments in relation to dissolution of the marriage link. It replaces the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, while ensuring continuity in the results of the negotiations. The Commission has incorporated the substance of the Convention in the proposal for a Regulation. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

2.2 Legal basis

The subject-matter covered by the Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal for a Directive is Article 61(c) of that Treaty.

The form chosen for the instrument 'a regulation' is warranted by the need to apply strictly defined and harmonised rules to jurisdiction and the recognition and enforcement of judgments, for otherwise the cross-border recognition of judgments will simply not work. These rules constitute a set of precise, unconditional provisions that are directly and uniformly applicable in a mandatory way and, by their very nature, require no action by the Member States to transpose them into national law.

The instrument falls to be adopted by the procedure of Article 67 of the Treaty, which provides that, during a transitional period of five years, the Council is to act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.

The new Title IV of the EC Treaty, which applies to the matters covered by this proposal for a Directive, is not applicable in the United Kingdom and Ireland, unless they "opt in" in the manner provided by the Protocol annexed to the Treaties. At the Council meeting (Justice and Home Affairs) held on 12 March 1999, these two Member States announced their intention of being fully associated with Community activities in relation to judicial cooperation in civil matters. It will be for them to embark on the procedure of Article 3 of the Protocol in due course.

Title IV of the EC Treaty is likewise not applicable in Denmark, by virtue of the relevant Protocol. But Denmark may waive its opt-out at any time. Denmark has so far given no notice of its intention of embarking on the procedure of Article 3 of the Protocol in due course.

The proposal has been drafted on the basis of the current situation. If the Regulation were to be applicable in one or more of these Member States, the requisite adjustments will have to be made. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

3. JUSTIFICATION FOR PROPOSAL IN TERMS OF PROPORTIONALITY AND SUBSIDIARITY PRINCIPLES

What are the objectives of the proposed measure in relation to the obligations imposed on the Community?

The objectives of the proposal are to improve and expedite the free movement of judgments in matrimonial matters and in matters of parental responsibility within the internal market. These objectives are part of the Union's objective of establishing an area of freedom, security and justice within which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country. To establish such an area the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the sound operation of the internal market.

• Does the measure satisfy the criteria of subsidiarity?
• Its objectives cannot be attained by the Member States acting alone and must therefore, by reason of the cross-border impact, be attained at Community level.
• Are the means deployed at Community level proportional to the objectives?
• The proposed instrument is confined to the minimum needed for the attainment of these objectives and does not exceed what is necessary for that purpose.

4. INDIVIDUAL PROVISIONS

4.1 General objective

Like the Convention it is to replace, the Regulation fills a gap in the application of the 1968 Brussels Convention, Article 1 of which expressly excludes matters relating to the law of persons; it takes over its essential structure and most of its fundamental principles.

The Regulation seeks to:

(1) introduce uniform modern standards for jurisdiction on annulment, divorce and separation and to facilitate the rapid and automatic recognition among Member States of judgments on such matters given in the Member States;

(2) lay down rules of jurisdiction concerning parental responsibility over the children of both spouses on the occasion of such proceedings and therefore simplifying the formalities governing the rapid and automatic recognition and enforcement of the relevant judgments.

The Regulation contains rules of direct international jurisdiction, i.e. rules which must be respected by the court of origin prior to a judgment in matrimonial proceedings. Such provisions do not, however, affect the distribution of territorial jurisdiction within each State or the situations of States the legal systems of which have not been unified.

The proposed Regulation, like the Convention, allows for specific schemes (Articles 36 [was 38] and 40 [was 42]).

4.2 Continuity

The Commission has incorporated the substance of the Convention in the proposal for a Directive to ensure continuity in the results of the negotiations, but has omitted such provisions as would be incompatible with the nature of the proposed instrument and the new framework for judicial cooperation in civil matters post-Amsterdam.

Given the close correspondence between the provisions of the Convention and of the Regulation, the survey of the provisions of the Directive is modelled on the explanatory report to the Convention, approved by the Council on 28 May 1998 (3).

(3) OJ C 221, 16.7.1998, p. 27.

4.3 Adaptation

But the obvious differences between the two types of instrument warrant departures from the Convention in a number of respects:

- jurisdiction of the Court of Justice: unlike Article 45 of the Convention, the Regulation does not need to confer jurisdiction on the Court of Justice, given the provisions of Articles 220 and ff. of the EC Treaty, which will apply here subject to Article 68;

- the agreements to amplify or facilitate the application of the Regulation: for the sake of clarity, the corresponding provisions of the Convention, viz. Articles 36 (30 [was 38(3)] and (4) (in part) and 39 [was 41] have been adapted and regrouped in Article 39 [was 41];

- reservations: by their very nature Regulations are directly applicable in their entirety in all Member States and reservations are not in place. Article 46(1) must accordingly disappear, but the special schemes in Articles 36(2) [was 38(2)] (Nordic Agreement) and 40 [was 42] (Concordats) are maintained. The Member States concerned by the declarations referred to in Article 46(2) and (3), namely Ireland and Italy, will have, if they see fit, to ask for the Declarations concerning them to be recorded in the Council Minutes if they participate in the Regulation;

- formal provisions: Articles 47 to 50 of the Convention would be out of place in a Community instrument. Articles 249 and 254 of the Treaty are fully applicable to the entry into force of the Regulation. The Commission, acting under Article 211 of the Treaty, will fully assume the role of proposing amendments if need be;

- Article 43, which permits the signing of bilateral agreements not to recognise judgments given against nationals of non-member countries on grounds of excess of jurisdiction would be out of place in a Community instrument. Such agreements by their very nature affect the Community rules of recognition and, after adoption of the Regulation, will be within the exclusive powers of the Community without the need for an express provision to that effect. Articles 16(1) and (2) and 43 of the Convention have accordingly been dropped in the Regulation;

- certain provisions of the Convention are left out of the Regulation to take account of the position of the United Kingdom, Ireland and Denmark:

• Article 2 took account of the specific features of certain domestic legal orders by offering alternative criteria of nationality or of domicile in the sense in which the word is used in the United Kingdom and Ireland. In the absence of an opt-in, the reference has been omitted from Article 2 and from all other provisions referring to it;
• Articles 19(2), 20(2) and 27(2), which contained specific provisions for the United Kingdom and Ireland;
• in Articles 21, 26, 28 and 29, the references to courts and redress procedures in the United Kingdom, Ireland and Denmark;
• Article 31(2), which contained specific provisions for Denmark. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

Proposal 2002

1. BACKGROUND

This Proposal is part of ongoing work within the European Community for the creation of a genuine judicial area based on the principle of mutual recognition of judicial decisions. [1]

[1] Conclusions of the Tampere European Council, Point 33.

Its legal basis is Articles 61(c) and 67(1) of the Treaty establishing the European Community. According to Articles 61(c) and 65 of the Treaty, the Community adopts measures in the field of judicial cooperation in civil matters having cross-border implications and insofar as necessary for the proper functioning of the internal market. These measures include improving and simplifying the recognition and enforcement of decisions in civil and commercial cases. The basic instrument in this area is Council Regulation (EC) No 44/2001, which however does not apply to certain well-defined matters, including the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession. [2]

[2] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ No L 12 of 16.1.2001, p. 1, Article 1(2)(a).

In the family law area, Council Regulation (EC) No 1347/2000 sets out rules on jurisdiction, recognition and enforcement of judgments on divorce, separation and marriage annulment, as well as judgments on parental responsibility for the children of both spouses given on the same occasion. [3] Council Regulation (EC) No 1347/2000 was the first Community instrument to be adopted in the area of judicial cooperation in civil matters, and constitutes an important first step for the mutual recognition of decisions in the family law area. The Regulation entered into force on 1 March 2001.

[3] Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ No L 160 of 30.6.2000, p. 19.

Building on Council Regulation (EC) No 1347/2000 France presented on 3 July 2000 an initiative aimed at abolishing exequatur for the part of the decision on parental responsibility that concerns rights of access ("French initiative on rights of access"). [4] The abolition of exequatur was coupled with a guarantee for the automatic return of the child at the end of the period of access, while the scope of the initiative was defined by reference to Council Regulation (EC) No 1347/2000.

[4] Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children, OJ No C 234 of 15.8.2000, p. 7.

The Justice and Home Affairs Council meeting on 30 November 2000 adopted a program for organizing future work for the mutual recognition of decisions in four areas of work with the final aim of abolishing exequatur for all decisions. [5] Area 2 of the program is based on Council Regulation (EC) No 1347/2000, and includes at its first stage the extension of the scope of the Regulation beyond the divorce context and the abolition of exequatur for rights of access. On the same occasion, the Council concluded that work on the French initiative on rights of access should be pursued in parallel with the extension of the scope of Council Regulation (EC) No 1347/2000, so as to guarantee equality of treatment for all children.

[5] Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ No C 12 of 15.1.2001, p. 1. The program concerns the following four areas of work: (i) Brussels I; (ii) Brussels II and family situations arising through relationships other than marriage; (iii) rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple; and (iv) wills and succession. In the third (and final) stage of the program, the exequatur will have been abolished in all four areas.

On 6 September 2001 the Commission presented a Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility ("Commission proposal on parental responsibility"). [6] The Proposal extends the rules on recognition and enforcement of Council Regulation (EC) No 1347/2000 to all decisions on parental responsibility based on common rules on jurisdiction and on reinforced cooperation between authorities. The basic rule on jurisdiction is the habitual residence of the child. The Proposal specifically addresses the problem of child abduction through provisions on jurisdiction and on the return of the child.

[6] Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, OJ No C 332 of 27.11.2001, p. 269. This Proposal builds on a working document presented on 27 March 2000 and a hearing held on 27 June 2001.

At the same time and for the purpose of addressing international situations, the Commission presented on 20 November 2001 a Proposal for a Council decision authorizing the Member States to sign the 1996 Hague Convention. [7]

[7] Proposal for a Council Decision authorizing the Member States to sign in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention), COM (2001) 680 final of 20.11.2001.

The discussions in the Council that followed pointed to the need to bring together into a single instrument the Commission proposal on parental responsibility and the French initiative on rights of access. Moreover, the informal meeting of the Justice and Home Affairs Ministers of 14-15 February 2002 opened the way for a solution to the difficult issue of the return of the child in cases of child abduction. This would entail giving the final say to the Member State of the habitual residence of the child, with the Member State to which the child has been abducted being limited to taking provisional measures to protect the child.

In the light of these discussions, the European Parliament has preferred to wait for this Proposal before giving its opinion. Given that the provisions of the Commission proposal on parental responsibility are taken over in their entirety in the present Proposal, that proposal is now devoid of purpose and will be formally withdrawn by the Commission using standard procedures.

Hence the Commission is now presenting a new proposal that brings together Council Regulation (EC) No 1347/2000, the Commission proposal on parental responsibility and the French initiative on rights of access. The Proposal has two elements. First, it takes over the provisions on divorce of Council Regulation (EC) No 1347/2000 as they are. Second, it integrates into a complete system of rules on parental responsibility the provisions on parental responsibility of Council Regulation (EC) No 1347/2000, the Commission proposal on parental responsibility and the French initiative on rights of access. As a result, Council Regulation (EC) No 1347/2000 is repealed, its provisions having been taken over in their entirety in the Proposal.

The Commission has opted for a single instrument on divorce and parental responsibility with a view to facilitating the work of judges and practitioners when dealing with questions on parental responsibility that often arise in the context of matrimonial proceedings. The alternative would have been to repeal only the provisions on parental responsibility of Council Regulation (EC) No 1347/2000 to bring them together with the Commission proposal on parental responsibility and the French initiative on rights of access. The end result would have been two separate instruments dealing with related matters, one on divorce and one on parental responsibility, the former being an existing instrument (Council Regulation (EC) No 1347/2000) but with half of its provisions repealed. This alternative was not deemed satisfactory neither for facilitating the application of the law by judges and practitioners nor for promoting the simplification and coherence of Community legislation.

2. OBJECTIVE

The Proposal aims at the recognition and enforcement within the Community of decisions in matrimonial matters and in matters of parental responsibility based on common rules on jurisdiction.

As regards matrimonial matters, the relevant provisions are taken over from Council Regulation (EC) No 1347/2000.

As regards matters of parental responsibility, a new set of rules is proposed, which builds on the existing provisions on parental responsibility in the context of divorce proceedings of Council Regulation (EC) No 1347/2000 and also brings together the two proposals under discussion.

The European Council meeting at Tampere in October 1999 identified the area of visiting rights as a priority for judicial cooperation. [8] This is a response to a real social need. As people increasingly move from one Member State to another, and families break up and are recomposed, children need a secure legal environment for maintaining relations with persons who have parental responsibility over them and who may now live in different Member States.

[8] Conclusions of the Tampere European Council, Point 34.

The objective of Community action in this context is to protect the child's best interests. This means, in particular, to give concrete expression to his or her fundamental right to maintain contact with both parents, as laid down in Article 24 of the Charter of Fundamental Rights of the European Union.

To this end, the Commission is hereby proposing:

(1) to extend the principle of mutual recognition to all decisions on parental responsibility (this corresponds to the Commission proposal on parental responsibility);

(2) to abolish exequatur for rights of access (this corresponds to the French initiative on rights of access); [9] and

[9] At the same time the Commission is proposing abolishing exequatur for certain judgments in the commercial law area through the creation of a European Enforcement Order (EEO) for uncontested claims.

(3) to elaborate a solution for the return of the child in cases of child abduction, whereby the Member State to which the child has been abducted may take a provisional protective measure not to return the child, which could in turn be superseded by a judgment on custody issued by the courts of the Member State of the child's habitual residence. Furthermore, should the latter entail the return of the child, the child should be returned without any special procedure being required for the recognition and enforcement of the judgment in the Member State to which the child has been abducted.

Hence the Proposal builds on Council Regulation (EC) No 1347/2000 to complete the first stage of the program of mutual recognition in area 2, the ultimate objective remaining the abolition of exequatur for all decisions.

The Proposal does not go beyond what is necessary to achieve the objective of simplifying the recognition and enforcement of decisions on parental responsibility, and thus meets the requirements of subsidiarity and proportionality set out in Article 5 of the Treaty establishing the European Community.

3. ARTICLES

The core of the Proposal is Chapters II and IV, which contain the rules on jurisdiction and recognition and enforcement respectively, and Chapter III, which elaborates a solution for the return of the child in cases of child abduction.

Proposal for a COUNCIL REGULATION amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters

EXPLANATORY MEMORANDUM

GROUNDS FOR AND OBJECTIVES OF THE PROPOSAL

10 The Treaty of Amsterdam sets out the objective of progressively establishing a common area of freedom, security and justice, amongst others by adopting measures in the field of judicial cooperation in civil matters. Pursuant to Article 65 of the Treaty, the Community shall adopt measures in the field of judicial cooperation in civil matters having cross-border implications insofar as they are necessary for the proper functioning of the internal market. Article 65 (b) specifically refers to measures "promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction".

The harmonisation of conflict-of-law rules facilitates the mutual recognition of judgments. The fact that courts of the Member States apply the same conflict-of-law rules to determine the law applicable to a given situation reinforces the mutual trust in judicial decisions given in other Member States.[1 The Programme of measures to implement the principle of mutual recognition of decisions in civil and commercial matters, adopted on 30.11.2000, OJ C 12, 15.1.2000, p. 1] The European Council has invoked the question of applicable law to divorce on two occasions.

The European Council in Vienna requested in 1998 that the possibility of drawing up a legal instrument on the law applicable to divorce be considered within five years of the entry into force of the Treaty of Amsterdam.[2 The Vienna Action Plan, adopted by the European Council 3 December 1998, OJ C19, 23.01.1999, p.1.] More recently, the European Council called upon the Commission in November 2004 to present a Green Paper on the conflict-of-law rules in matters relating to divorce in 2005.[3 The Hague Programme: strengthening freedom, security and justice in the European Union, adopted by the European Council 4-5 November 2004.] [Expanatory Memorandum COM) (2006) final]

General context

The growing mobility of citizens within the European Union has led to an increasing number of international couples, i.e. spouses of different nationalities, spouses who live in different Member States or who live in a Member State in which one or both of them are not nationals. In view of the high divorce rate in the European Union, applicable law and jurisdiction in matrimonial matters concern a significant number of citizens each year. Section 3 of the attached Impact Assessment contains statistics on the number of international divorces and marriages within the European Union. [Explanatory Memorandum COM) (2006) final]

Existing provisions in the area of the proposal

There are currently no Community rules in the field of applicable law in matrimonial matters. The first Community instrument adopted in the area of family law, Council Regulation (EC) No 1347/2000 [4 Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility for children of both spouses, OJ L 160, 30.06.2000, p. 19.], set out rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters as well as judgments on parental responsibility for children of both spouses given in the context of a matrimonial proceeding. It did not, however, include rules on applicable law. [Explanatory Memorandum COM) (2006) final]

The entryinto force of Council Regulation (EC) No 2201/2003 [5 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, p. 1.], which repealed and replaced Council Regulation (EC) No 1347/2001 as of 1 March 2005, did not entail any change in this respect. The question of applicable law was not invoked during the negotiations of this Regulation, which took over virtually unchanged the provisions on matrimonial matters from Council Regulation (EC) 1347/2000.

Council Regulation (EC) No 2201/2003 allows spouses to choose between several alternative grounds of jurisdiction. Once a matrimonial proceeding is brought before the courts of a Member State, the applicable law is determined on the basis of the national conflict-of-law rules of that State, which are based on very different criteria.

The majority of Member States determine the applicable law on the basis of a scale of connecting factors that seek to ensure that the proceeding is governed by the legal order with which it has the closest connection. Other Member States apply systematically their domestic laws ("lex fori") to matrimonial proceedings. [Explanatory Memorandum COM) (2006) final]

Objectives of the Proposal

The overall objective of this Proposal is to provide a clear and comprehensive legal framework in matrimonial matters in the European Union and ensure adequate solutions to the citizens in terms of legal certainty, predictability, flexibility and access to court.

The current situation may give rise to a number of problems in matrimonial proceedings of an international nature. The fact that national laws are very different both with regard to the substantive law and the conflict-of-law rules leads to legal uncertainty. The great differences between and complexity of the national conflict-of-law rules make it very difficult for international couples to predict which law will apply to their matrimonial proceeding. The large majority of Member States do not provide any possibility for the spouses to choose applicable law in matrimonial proceedings. This may lead to the application of a law with which the spouses are only tenuously connected and to a result that does not correspond to the legitimate expectations of the citizens. In addition, the current rules may induce a spouse to "rush to court", i.e. to seise a court before the other spouse has done so to ensure that the proceeding is governed by a particular law in order to safeguard his or her interests. Finally, the current rules do not guarantee sufficient access to court. [Explanatory Memorandum COM) (2006) final]

The Proposal amends Council Regulation (EC) No 2201/2003 as regards jurisdiction and applicable law in matrimonial matters to attain the following objectives:

• Strengthening legal certainty and predictability

The Proposal introduces harmonised conflict-of-law rules in matters of divorce and legal separation to enable spouses to easily predict which law that will apply to their matrimonial proceeding. The proposed rule is based in the first place on the choice of the spouses. The choice is confined to laws with which the marriage has a close connection to avoid the application of "exotic" laws with which the spouses have little or no connection. In the absence of choice, the applicable law is determined on the basis of a scale of connecting factors which will ensure that the matrimonial proceeding is governed by a legal order with which the marriage has a close connection. This will greatly enhance legal certainty and predictability for the spouses concerned as well as for practitioners.[Explanatory Memorandum COM) (2006) final]

• Increasing flexibility by introducing limited party autonomy

There is currently very limited place for party autonomy in matrimonial matters. The national conflict-of-law rules foresee in principle only one solution in a given situation, e.g. the application of the law of the common nationality of the spouses or the application of the law of the forum. The proposal renders the legal framework more flexible by introducing a limited possibility for the spouses to choose (a) applicable law and (b) the competent court in proceedings concerning divorce and legal separation. To allow spouses to come to an agreement on these matters could be particularly useful in cases of divorce by mutual consent. Special safeguards are introduced to ensure that the spouses are aware of the consequences of their choice. [Explanatory Memorandum COM) (2006) final]

• Ensuring access to court

The proposal seeks also to improve access to court in matrimonial proceedings. The possibility to choose the competent court in proceedings relating to divorce and legal separation ("prorogation") will enhance access to court for spouses who are of different nationalities. The rule on prorogation applies regardless of whether the couple lives in a Member State or in a third State. In addition, the proposal specifically addresses the need to ensure access to court for spouses of different nationalities who live in a third State. The proposal introduces a uniform and exhaustive rule on residual jurisdiction in order to enhance legal certainty and ensure access to court in matrimonial matters for spouses who live in a third State but would like to bring proceedings in a Member State with which they have a close connection.[Explanatory Memorandum COM) (2006) final]

• Preventing “rush to court” by one spouse

Finally, the Proposal addresses the problem of “rush to court” by one spouse, i.e. where one spouse applies for divorce before the other spouse has done so to ensure that the proceeding is governed by a law to safeguard his or her own interests. This may lead to the application of a law with which the defendant does not feel closely connected or which fails to take into account his or her interests. It further renders reconciliation efforts difficult and leaves little time for mediation. The introduction of harmonised conflict-of-law rules are likely to greatly reduce the risk of "rush to court", since any court seised within the Community would apply the law designated on the basis of common rules. [Explanatory Memorandum COM) (2006) final]

• Consistency with the other policies and objectives of the Union

The Proposal respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union as general principles of Community law. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter. [Explanatory Memorandum COM) (2006) final]

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT

• Consultation of interested parties

The Commission presented a Green Paper on applicable law and jurisdiction matters in divorce matters on 14 March 2005. [6 COM (2005) 82 final] The Green Paper identified a number of shortcomings under the current situation and identified different possible policy options to address the problems. The options included status quo, harmonisation of the conflict-of-law rules, introducing a limited possibility for the spouses to choose the applicable law, revising the grounds of jurisdiction listed in Article 3 of Council Regulation (EC) No 2201/2003, revising Article 7 on residual jurisdiction of Council Regulation (EC) No 2201/2003, introducing a limited possibility for the spouses to choose the competent court,introducing a limited possibility to transfer a case and finally a combination of the different solutions. [Explanatory Memorandum COM) (2006) final]

The Commission received approximately 65 submissions in response to the Green Paper. [7 The responses are published at the following address: http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_public_en.htm ]

In its opinion of 28 September 2005 on the Green Paper, the European Economic and Social Committee welcomed the initiative taken by the Commission.

The Commission organised a public hearing on 6 December 2005. An expert meeting was subsequently held on 14 March 2006. The discussions took place on the basis of a discussion paper drawn up by the services of the Commission.

The majority of the responses acknowledged the need to enhance legal certainty and predictability, to introduce a limited party autonomy and to prevent "rush to court". Certain stakeholders expressed concerns that the harmonisation of conflict-of-law rules would oblige courts to apply foreign law and that this may lead to delays and additional costs in matrimonial proceedings. [Explanatory Memorandum COM) (2006) final]

The consultation with interested parties has been taken into account in the preparation of this Proposal.

• Collection and use of expertise

There was no need for external expertise.

• Impact assessment

The Commission has undertaken an impact assessment which is attached to the proposal. The Impact Assessment envisages the following options: (i) status quo, (ii) increased cooperation between Member States; (iii) harmonisation of the conflict-of-law rules including a limited possibility for spouses to choose the applicable law; (iv) revision of the rule on general jurisdiction of Council Regulation (EC) No 2201/2003, (v) introduction of a limited possibility for spouses to choose competent court and (vi) revision of the rule on residual jurisdiction of Council Regulation (EC) No 2201/2003. [Explanatory Memorandum COM) (2006) final]

It results from the impact assessment that a combination of Community actions is necessary to tackle the various problems. The report advocates a revision of Council Regulation (EC) No 2201/2003 including a harmonisation of conflict-of-law rules with a limited possibility for the spouses to choose the applicable law, the introduction of prorogation and a revision of the rule of residual jurisdiction in Article 7. [Explanatory Memorandum COM) (2006) final]

3) LEGAL ELEMENTS OF THE PROPOSAL

• Legal basis

The legal basis for this proposal is Article 61 (c) of the Treaty conferring powers on the Community to adopt measures in the field of judicial cooperation in civil matters as provided for in Article 65. Article 65 confers legislative powers on the Community with regard to judicial cooperation in civil matters having cross-border implications in so far as necessary for the proper functioning of the internal market.

Article 65 (b) explicitly mentions measures promoting the compatibility of conflict-of-law rules and jurisdiction rules.

The proposal concerns provisions of jurisdiction and applicable law which only come into play in international situations, e.g. where spouses live in different Member States or are of different nationalities. The cross-border requirement in Article 65 is consequently fulfilled.

The Community institutions have a certain margin of discretion in determining whether a measure is necessary for the proper functioning of the internal market. The present proposal facilitates 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. [Explanatory Memorandum COM) (2006) final]

• Subsidiarity principle

The objectives of the Proposal cannot be accomplished by the Member States but require action at Community level in the form of common rules on jurisdiction and applicable law. Jurisdiction rules as well as conflict-of-law rules must be identical to ensure the objective of legal certainty and predictability for the citizens. Unilateral action by Member States would therefore run counter this objective. There is no international convention in force between Member States on the question of applicable law in matrimonial matters. The public consultation and the impact assessment have demonstrated that the scale of the problems addressed in this proposal is significant and that it concerns thousands of citizens each year. In light of the nature and the scale of the problem, the objectives can only be achieved at Community level. [Explanatory Memorandum COM) (2006) final]

• Proportionality principle

The Proposal complies with the principle of proportionality in that it is strictly limited to what is necessary to achieve its objectives. The proposed rules on applicable law and prorogation are limited to divorce and legal separation and do not apply to marriage annulment. [Explanatory Memorandum COM) (2006) final]

It is expected that the present proposal will not entail any additional financial or administrative burdens on citizens and only a very limited additional burden on national authorities.

• Choice of instrument

With regard to the type of legislative instrument, the nature and the objective of the proposal require the form of Regulation. The need for legal certainty and predictability calls for clear and uniform rules. The proposed rules on jurisdiction and applicable law are detailed and precise and require no implementation into national law. To leave Member States any margin of discretion for the implementation of these rules would endanger the objectives of legal certainty and predictability. [Explanatory Memorandum COM) (2006) final]

4) BUDGETARY IMPLICATION

The proposal has no implication for the Community budget.

5) ADDITIONAL INFORMATION

• Simplification

The proposal provides a simplification of administrative procedures for citizens as well as for practitioners.

In particular the harmonisation of conflict-of-law rules would considerably simplify the situation for private parties and practitioners, who will be able to determine the applicable law on the basis of one single set of rules which will replace the existing twenty-four national conflict-of-law rules.

The proposal is included in the Commission's rolling programme for up-date and simplification of the acquis communautaire. [Explanatory Memorandum COM) (2006) final]

(....)

Position of the United Kingdom, Ireland and Denmark

The United Kingdom and Ireland do not participate in co-operation in matters covered by Title IV of the Treaty unless they give notice of their wish to take part in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community. Denmark is not participating in the adoption of this Regulation and is not bound by it nor subject to its application by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. [Explanatory Memorandum COM) (2006) final]

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