Overview of Council Regulations 2016/1103 and 2016/1104 Emmanuel Guinchard

EJTN, Escuela Judicial, Barcelona, 10 April 2019

Context Vera Jourová, EU Justice Commissioner: “More than 16 million international couples will benefit from clear procedures in case of divorce or death of a partner. They will be able to save around €350 million each year in legal costs”

Continuation of the harmonisation of PIL at EU level (contrast with state of harmonisation of private law at EU level) … one day after referendum on Brexit (23 / 24 June 2016)

Enhanced cooperation procedure (2nd time after Rome III)

Two Regulations but same structure: Chapter II on Jurisdiction, Chapter III on Applicable Law, Chapter IV and V on Recognition / Enforcement of Decisions / Authentic Instruments and Court Settlements (i.e. the 3 main questions of PIL are dealt with)

Main Texts Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and nforcement of decisions in matters of matrimonial property regimes, OJEU L 183, 8.7.2016, p. 1

Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, OJEU L 183, 8.7.2016, p. 30

Corrigenda (Matrimonial Property) __ Corrigendum to Council Regulation (EU) 2016/1103, OJ L 113, 29.4.2017, p. 62: Article 69: “for: ‘2. If the proceedings in the Member State of origin were

instituted before 29 January 2019, decisions given after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II.

3. Chapter III shall apply only to spouses who marry or who specify the law applicable to the matrimonial property regime after 29 January 2019.’,

read: ‘2. If the proceedings in the Member State of origin were instituted before 29 January 2019, decisions given on or after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II.

3. Chapter III shall apply only to spouses who marry or who specify the law applicable to the matrimonial property regime on or after 29 January 2019.’.

__ Corrigendum to Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and nforcement of decisions in matters of matrimonial property regimes (OJ L 183, 8.7.2016), OJ L 167, 4.7.2018, p. 36: correction of a typo on the contents page and on page 1 (no impact on substance) + “Article 53(1): for: ‘1. When a decision must be recognised in accordance with this Chapter, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement without a declaration of enforceability under Article 46 being required.’,

read: ‘1. When a decision must be recognised in accordance with this Chapter, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement without a declaration of enforceability under Article 47 being required.’."

Corrigendum (Registered Partnership) Corrigendum to Council Regulation (EU) 2016/1104, JO L 113, 29.4.2017, p. 62:

Article 69: “for: ‘2. If the the proceedings in the Member State of origin were instituted before 29 January 2019, decisions given after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II.

3. Chapter III shall apply only to partners who register their partnership or who specify the law applicable to the property consequences of their registered partnership after 29 January 2019.’,

read: ‘2. If the proceedings in the Member State of origin were instituted before 29 January 2019, decisions given on or after that date shall be recognised and enforced in accordance with Chapter IV as long as the rules of jurisdiction applied comply with those set out in Chapter II.

3. Chapter III shall apply only to partners who register their partnership or who specify the law applicable to the property consequences of their registered partnership on or after 29 January 2019.’.

Complementary Texts __ At EU Level: Commission Implementing Regulation (EU) 2018/1935 of 7 December 2018 establishing the forms referred to in Council Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, C/2018/8145, OJ L 314, 11.12.2018, p. 14

+ Commission Implementing Regulation (EU) 2018/1990 of 11 December 2018 establishing the forms referred to in Council Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, C/2018/8226, OJEU L 320, 17.12.2018, p. 1

__ At National level: example of French Decree n° 2018-1219 of 24 December 2018 (e.g. art. 509-1 CPC)

E-Justice Portal? E-justice portal unfortunately not useful: https://e-justice.europa.eu/content_property_effects_of_marriage_and_registered_partnership-182-en.do?init=true: webpage still refers to “The Commission proposals are now being examined by the Council and the European Parliament”. The same is true for the Beta version of the e-justice portal as the page has just been copied and pasted to the new version without being updated: https://beta.e-justice.europa.eu/182/FR/property_in_marriage_amp_civil_partnerships

However, the portal refers to the useful webpage from the Council of Notariats of the European Union: http://www.coupleseurope.eu/fr/home/

Scope of Application (ratione temporis) Key date = 29 January 2019. However, distinction:

Jurisdiction / Enforcement: Chapters II, IV and V applicable from 29 January 2019 (with a proviso for enforcement of decisions if proceedings in MS of origin instituted before key date: Chapter IV only if (pre-Regs) rules of jurisdiction applied comply with Chapter II).

Applicable Law: “Chapter III shall apply only to spouses who marry or who specify the law applicable to the matrimonial property regime on or after 29 January 2019” (idem partnership).

Scope of Application (ratione loci) Enhanced cooperation: 18 Member States: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden. Other EU States may join in the future.

An example: Article 4 Mat Reg on Jurisdiction in the event of the death of one of the spouses: “Where a court of a Member State is seised in matters of the succession of a spouse pursuant to Regulation (EU) No 650/2012, the courts of that State shall have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that succession case”. The expression ‘Member State’ refers here to one of the 18 MS only.

Relations with international conventions: Article 62

Scope of Application (ratione loci) Jurisdictional rules may apply even if defendant not domicilied in a Member State (i.e. no equivalent to Article 6 Brussels I bis), or even if both parties are not habitually resident in a Member State (e.g. Article 6 d): judge of the common nationality)

Applicable Law rules apply even if applicable law is not that of a Member State

Recognition / Enforcement rules apply only if decision or authentic instrument or court settlement from another Member State

Scope of Application (ratione materiae) __ Reg. 2016/1103: “‘matrimonial property regime’ means a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution” (Art. 3). Wide conception, e.g. “not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law” (recital 18). No definition of marriage.

__ Reg. 2016/1104: “‘property consequences of a registered partnership’ means the set of rules concerning the property relationships of the partners, between themselves and in their relations with third parties, as a result of the legal relationship created by the registration of the partnership or its dissolution” (Art. 3)

For the purposes of this Regulation, “‘registered partnership’ means the regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation” (Art.3)

Jurisdiction (Main Rules) One principle: extension of jurisdiction. Two cases:

__ Succession: Art. 4: “Where a court of a Member State is seised in matters of the succession of a spouse [ / registered partner] pursuant to Regulation (EU) No 650/2012, the courts of that State shall have jurisdiction to rule on matters of the matrimonial property regime [ / the property consequences of the registered partnership] arising in connection with that succession case”

__ Both spouses / partners living: Art. 5. Judge of the divorce / dissolution has jurisdiction for property of the couple. Subject to spouses’ agreement (in some circumstances, e.g. where court is that of a “Member State in which the applicant is habitually resident and the applicant had resided there for at least a year immediately before the application [under Brussels II bis] was made) / parners’ agreement.

Jurisdiction (Standard Default Rules) Standard default rules, i.e. in case Articles 4 or 5 do not apply:

__ Objective connections (Art. 6). Cascade rule. First 3 criteria = territorialist approach (HR). Fourth criterion = personalist approach (common nationality). One extra connecting factor for registered partnership.

__ Choice of court possible (Art. 7). But limited: State of the applicable law (i.e. the judge will apply his own law) or of the conclusion of the marriage / registered partnership

Jurisdiction (Exceptional rules) Exceptional rules:

__ Jurisdiction by appearance (Art. 8)

__ Forum non conveniens (Art. 9)

__ Subsidiary jurisdiction (Art. 10) immovable property

__ Forum necessitatis (Art. 11)

Applicable Law (Methodology) Classical private international law methodology:

__ Lois d’application immediate / Overriding mandatory provisions of the forum (Art. 30).

__ Rules of conflict of laws (see infra). No renvoi (Art. 32)

__ Reserve of ordre public (Art. 31)

Lois d’application immediate Definition of Francescakis: “provisions the respect for which is regarded as crucial by a Member State for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the [matrimonial property regime / property consequences of a registered partnership] pursuant to this Regulation” (Art. 30).

Only one example provided: “rules for the protection of the family home” (recital 53 for Reg. 2016/1103 and recital 52 for Reg. 2016/1104).

No foreign lois d’application immediate.

Rules of conflict of laws (Principles) Universality: The law designated as applicable by the Regulations shall be applied whether or not it is the law of a Member State (Art. 20).

Unity: The law applicable to a matrimonial property regime / to the property consequences of a registered partnership shall apply to all assets falling under that regime / that are subject to those consequences, regardless of where the assets are located (Art. 21).

Liberty, i.e. choice of the applicable law by spouses / partners (Art. 22)

Choice of Law (Party Autonomy) Choice but limited to laws with objective connecting factors:

Spouses / partners (incl. future ones) may designate, or change, the law applicable to their matrimonial property regime / property consequences of their registered partnership, provided that that law is either: (a) the law of the State where the spouses / partners, or one of them, is habitually resident at the time the agreement is concluded; or (b) the law of a State of nationality of either spouse / partner at the time the agreement is concluded.

For registered partnership, extra condition (choice of applicable law possible provided that that law attaches property consequences to the institution of the registered partnership) and extra choice (law of the State under whose law the registered partnership was created)

In the absence of choice Different solutions where marriage or registered partnership (Art. 26):

__ Marriage: Cascade rule: “the law of the State: (a) of the spouses' first common habitual residence [CHR] after the conclusion of the marriage; or, failing that (b) of the spouses' common nationality at the time of the conclusion of the marriage [Note: this is not available if the spouses have more than one common nationality at that time]; or, failing that (c) with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances”.

If (a) applies, exception possible (on request) in favour law of State where spouses had their last CHR if they stayed there for a significantly longer period of time than in the State of their first CHR, and provided that both spouses had relied on the law of that State [last CHR] in arranging or planning their property relations.

In the absence of choice (continued) __ Registered partnership: Single rule: “law of the State under whose law the registered partnership was created”.

Exception possible (on request) in favour law of the State where partners had their last common habitual residence if they stayed there for a significantly longer period of time than in the State under whose law the registered partnership was created, and provided that both partners had relied on the law of that State [last CHR] in arranging or planning their property relations. Condition: that the law of that other State attaches property consequences to the institution of the registered partnership.

Ordre public “The application of a provision of the law of any State specified by [the Regulations] may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum” (Art. 31)

Recitals (54 Reg. 2016/1103 and 53 Reg. 2016/1104) add that, “However, the courts or other competent authorities should not be able to apply the public policy exception in order to set aside the law of another State […] when doing so would be contrary to the Charter of Fundamental Rights of the European Union (‘Charter’), and in particular Article 21 thereof on the principle of non-discrimination”.

By contrast with recognition / enforcement of foreign judgments (Art. 38), only a recital.

Recognition & Enforcement (decisions) Recognition de plano, i.e. no special procedure required (Art. 36)

Exequatur required for enforcement (Art. 42). However, mere formality at first instance and control only on appeal (compare Art. 47 with Art. 51).

Control = classical grounds of non-recognition and enforcement: manifest incompatibility with ordre public; in case of a default judgment, lack of service in time and in such a way as to enable defendant to arrange for his defence (unless defendant failed to challenge the decision when it was possible for him to do so); irreconcilability with a decision delivered in the host Member State (between the same parties); irreconcilability with an earlier decision given in another State (same cause of action and between the same parties), provided that that decision fulfils the conditions necessary for its recognition in the host Member State (Art. 37 / 51). No review as to substance (Art. 40).

Enforcement (auth. instr. & settlements) For the enforcement of authentic instruments and court settlements, renvoi to the rules on enforcement of decisions in respect of the procedure (Art. 59.1 and 60.1), i.e. exequatur. However, regarding ‘substance’, refusal of enforcement on appeal only if manifest incompatibility with ordre public (Art. 59.3 and 60.3).

Note: “An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned” (Art. 58)

Thank you!

Emmanuel Guinchard

https://europeanciviljustice.wordpress.com/