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 (2 nd 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 cle 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 cle 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 er that at dat ate 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 er 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 er that at dat ate 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 er 29 January 2019.’.
Complementary Texts __ At EU 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 Nati tional 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_partnershi p-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 29 Janu nuary y 20 2019 19. 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 Me Member r Sta tates: 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)
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