Judicial cooperation in civil matters: jurisdiction, applicable law and recognition and enforcement of decisions regarding property consequences of registered partnerships

The European Parliament adopted by 538 votes to 34, with 54 abstentions, in the framework of a special legislative procedure (Parliament’s consultation), a legislative resolution on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships.

The report proposed parallel amendments to those in the report on the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

Parliament approves the Commission proposal subject to the following amendments:

Choice of law for registered partnerships: the Commission proposal does not allow registered partnerships the choice of law. Members propose a rule enabling registered partnerships to choose the applicable law for their property regime.

Parliament approves the Commission’s proposal subject to parallel amendments to those proposed in its report on the proposed Council Regulation concerning the proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

Choice of law for registered partnerships: the Commission proposal does not allow registered partnerships the choice of law. Parliament proposes a rule enabling registered partnerships to choose the applicable law for their property regime.

The amended text states that the partners or future partners may agree on or change the law applicable to the property regime of their registered partnership. The parties should be accorded a degree of freedom in choosing the applicable law for their property regime. This option must be based on:

• the law of the State in which the partners or future partners, or one of them, is/are habitually resident at the time when the agreement is concluded, or
• the law of a State of which one of the partners or future partners is a national at the time when the agreement is concluded, or
• the law of a State in which the partnership is registered.

The choice of law shall be valid only if the partners or future partners can prove that, prior to making the choice, they have taken advice on its legal consequences.

If registered partnerships between the same persons exist in different States, the partnership which was most recently established, dating from the day on which it was established, shall be decisive for the purposes of determining the applicable law.

As a further consequence of the new provision on the choice of law, Parliament proposes a provision – in line with that for matrimonial property regimes – on the choice of jurisdiction, which is linked to the choice of law.

Property issues: Members propose extending the solutions which are appropriate for matrimonial property regimes to registered partnerships. This applies above all to integration of the new matrimonial property regime provisions into other EU legislation, in particular the new EU Regulation No 650/2012 on wills and succession and the ‘Brussels I’ Regulation.

In this context, the proposed amendments concern the following:

• the determination of the scope (e.g. excluding maintenance settlements from German law or similar structures in other Member States),
• reworking the rules on jurisdiction,
• maintaining (also proposed in the legislative resolution on matrimonial property regimes) the provisions on the adaptation of rights in rem and the recognition, enforceability and enforcement of judicial decision to be utilised from the Regulation on wills and succession, and the acceptance and enforceability of authentic instruments.

Recognition in a Member State of a decision relating to the property consequences of a registered partnership has as its only object to allow the enforcement of the property consequences determined in that decision. It does not imply recognition by that Member State of the partnership underlying the property consequences which gave rise to that decision.

Revision clause: Parliament proposes broadening the revision clause in order to examine in close detail, in particular, the practical impact of the individual points where matrimonial property regimes and property regimes of registered partnerships (still) differ and to use this as a basis for working towards harmonisation.