The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.
The main amendments – made in the framework of the consultation procedure – are as follows:
Definition of the term “habitual residence”: a definition of the term has been provided to mean a person’s place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.
Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.
According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.
Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.
This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.
MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.
Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.
In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules. MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.