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Brussels, 17 July 2006
Green paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition
The Commission has adopted a new Green Paper to launch a wide-ranging consultation exercise on the difficulties arising in a European context for married and unmarried couples when settling the property consequences of their union and the legal means of solving them.
The Green Paper mainly deals with issues concerning the determination of the law applicable to the property consequences of such unions and ways and means of facilitating the recognition and enforcement in Europe of judgments and formal documents relating to matrimonial property rights, and in particular marriage contracts.
In this Green Paper the Commission focuses on questions concerning matrimonial property rights, that is to say the legal rules relating to the spouses' financial relationships resulting from their marriage, both with each other and with third parties, in particular their creditors. We are concerned here, for example, with couples not sharing the same nationality who separate and leave property in a Member State, or couples sharing the same nationality who divorce and have property in another Member State. The Green Paper also considers the question of the property consequences of other forms of unions, such as registered partnerships. In all Member States, more and more couples are formed without a marriage bond. To reflect this new social reality, the Green Paper also addresses the question of the property consequences of the separation of unmarried couples in an international context.
A clear political mandate
The Green Paper clearly follows the political mandate given by the Tampere European Council (1999) and the mutual recognition programme adopted by the Council and the Commission at the end of 2000. The Hague Programme adopted by the European Council on 4 and 5 November 2004, which calls for full implementation of the 2000 mutual recognition programme, and the Council and Commission Action Plan implementing it, called on the Commission to submit a Green Paper on “the conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition”.
A genuine public necessity
One consequence of the increased mobility of persons within an area with no internal frontiers is a significant increase in all forms of married and unmarried couples involving nationals of different Member States. It is estimated that nearly 7 million foreign EU nationals live in another Member State of the Union. A comparative study commissioned by the Commission estimates that almost 2.5 million items of real property are owned by spouses and located in Member States different from that of their residence. The Commission impact study relating to its proposal for a Regulation on applicable law and jurisdiction in divorce matters shows that there are approximately 170 000 international divorces in the Union each year, i.e. 16% of all divorces.
The same study highlighted the great disparity between rules both of substantive law and of private international law governing matrimonial property rights, with the effect that couples have to face up to the complexity of existing cumbersome legal mechanisms, even if they have concluded a valid marriage contract that specifies which law will be applicable.
A legal environment still in need of improvement
Community law currently offers only an imperfect response to the practical and legal difficulties that frequently occur at the time of the distribution and/or management of these couples’ property.
There are only fragmentary rules in Europe, and they are either not yet applicable or not complete. Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) excludes matrimonial property rights from its scope. Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (Brussels II) does not cover the property consequences of the dissolution of the marriage.
Internationally, the Hague Convention on the law applicable to matrimonial property regimes of 14 March 1978 has been ratified by only three Member States – France, Luxembourg and the Netherlands.
A twofold objective: greater legal certainty and simplification for union citizens
Greater legal certainty depends on there being harmonised rules to determine the law applicable to the distribution of the assets of married and unmarried couples in international situations. The aim is not to harmonise the rules of substantive law in the Member States, which will remain as they are. The Green Paper is concerned solely with the rules of private international law that designate the law of the Member State with which the situation is most closely connected as the applicable law. The aim is to ensure a degree of foreseeability in the law for the relevant couples without encroaching on the Member States’ respective legal traditions. The Green Paper comes with an annex outlining the rules applicable in the various Member States.
Harmonisation of the conflict-of-laws rules will boost mutual trust between legal systems and thus promote application of the mutual recognition principle in the Union. The effect of rules determining the applicable law will be to enable courts to give judgments on the basis of rules of substantive law that are most closely connected with the situation. This will help to avert the risk of unfair or over-complicated treatment. Partners in married and unmarried couples will receive a response that matches their situation and the judgment will be all the less open to challenge as it will be given in accordance with a law designated by harmonised rules.