Communitarisation of choice of law rules on divorce and termination of registered partnerships

Transcription

1 Communitarisation of choice of law rules on divorce and termination of registered partnerships Research Paper by Nynke Baarsma 1. Introduction The free movement of persons is one of the fundamental freedoms of the European Union. With the increasing mobility of Union citizens within the EU the number of international family relationships grew as well. An integrated area where private persons enjoy freedom of movement can be better achieved through a common regime guaranteeing the coordination of all national systems. In short, within the EU a shared system of private international law is needed. Such a system is currently being established. The EC-Treaty provides for a Community competence in the field of judicial cooperation in civil matters (Art. 61 ff. EC-Treaty). Although the EU has primarily focused on the establishment of common rules in the field of trade law, the European Council in Vienna has emphasised in 1998 that the aim of a common judicial area is to make life simpler for the citizens, in particular in cases affecting the everyday life of the citizens, such as divorce. 1 Since the entry into force of the Treaty of Amsterdam in May 1999, judicial cooperation within the field of family law has become an important element in the construction of an area of freedom, security and justice within the European Union. 2 The legislative activities in the field of family law that are currently under construction are directly linked to European integration and aim to stimulate the free movement of EU citizens throughout the Union. 3 It is presumed that the existing differences in family law among the Member States of the EU are an obstacle for the free movement of persons. Citizens refrain from moving from one Member State to another if they fear that it might affect their family status and rights. 4 To overcome this obstacle, it is necessary to harmonise the Member States rules regarding crossborder family relations. In other words, in a new European judicial area, the citizens shall have access to justice, the right to predictability regarding the law applicable, and certainty that the Member States judgments shall be recognised within the whole Union. This requires unification of Member States private international law regarding issues of family law. The European Commission has taken a next step in the direction of such a unification in July 2006 with the Proposal to introduce common EC rules on choice of law rules regarding divorce. 1 Official Journal C 19, 23 January 1999, p The Amsterdam Treaty of 18 June 1997 entered into force on 1 May The Treaty amends the Treaty on the European Union (Treaty of Maastricht of 7 February 1992) and the three Community Treaties (European Coals and Steel Community (ECSC), European Atomic Energy Community (EAEC) and the European Community (EC)). The amendments primarily concern the Union Treaty and the EC Treaty. 3 M. Jänterä-Jareborg, Jurisdiction and Applicable Law in Cross-Border Divorce Cases in Europe, In: J. Basedow, H. Baum an Y. Nishitani (eds.), Japanese and European Private International Law in Comparative Perspective, Tübingen: Mohr Siebeck 2008, p M. Tenreiro and M. Ekström, Unification of private international law in family matters within the European Union, in: K. Boele-Woelki (ed.) Perspectives for the Unification and Harmonisation of Family Law in Europe Antwerp: Intersentia 2003, p. 187.

2 My PhD-research focuses on the communitarisation of the choice of law rules on cross-border termination of marriages and marriage-like registered partnerships by means of dissolution. The concepts of marriage and registered partnership equally cover different-sex and same-sex unions. The purpose of the research is to examine the process of the communitarisation of choice of law rules on divorce. What changes will bring about the introduction of European choice of law rules? Why do the common EC rules differ from the Dutch rules? Is this differentiation right and well-motivated in the light of the principles of European law? This paper will give an outline on the communitarisation of international family law. I will first briefly describe the general character of private international law and the competence of the EU to provide for legislation in this field. Subsequently, I will elaborate on the communitarisation of family law in general and of the choice of law rules on divorce in particular. Finally, I will conclude with an outline of the research. 2. (EU) Private International Law The term private international law refers to rules on private-law relationships and civil proceedings having international implications. Each developed system has its own rules of private law, so that its content will vary from State to State. The need for rules of private international law originates from a dual reality: (1) the world consists of sovereign states, each having its own system of law; and (2) most people do not live in isolation but establish (legal) relationships with one another, also - increasingly - beyond national borders. 5 Differences between the national laws of the parties to an international legal relationship - whether marriage, contract, or tort - do not only give rise to the question by whose law their rights and duties should be determined, but they also question the jurisdiction of domestic courts and the possibility of a limping relationship if a foreign ruling is not recognized at home. 6 Private international law deals with three kinds of questions: First is the question of jurisdiction: Which state s courts are competent to rule on a certain case? Second is the question of choice of law: Which state s law is applicable to a certain case? Third is the question of recognition and enforcement of foreign judgments: Under what circumstance can such acts passed by another state be recognized and enforced? All three questions are interrelated, but in my thesis the focus shall be only on the second, namely choice of law. Already in 1957 the negotiators of the EEC-Treaty, which entered into force in 1958, were aware of the interest of the development of rules of private international law for the construction of an economically integrated area. And so they provided for the possibility for Member States to negotiate on regulations in the field of private international law. The Treaty of Amsterdam marked a true revolution in the development of EC private international law. As mentioned above, the Treaty of Amsterdam entrusted the EC with competence in matters of judicial cooperation in order to progressively 5 M.H. ten Wolde, Inleiding Internationaal en Inter-Europees Privaatrecht, Groningen: Hephaestus 2007, p Th.M. de Boer, The Relationship between Uniform Substantive Law and Private International Law, in: A. Hartkamp (ed.), Towards a European Civil Code, Nijmegen 2004, p

3 establish an area of freedom, security and justice. With the Treaty of Amsterdam, judicial cooperation in civil matters, more specifically private international law and procedural law, has been transferred from the Third to the First Pillar, i.e. the European Community. Article 61(c) prescribes that the Council shall adopt measures in the field of judicial cooperation in civil measures as provided for in Article 65. Article 65 contains three requirements: measures must concern judicial cooperation in civil matters, have cross border implications and be necessary for the proper functioning of the internal market. 7 In addition, measures in the field of family law must be adopted unanimously by the Member States, each Member State having a right of veto (Art. 67(5) EC-Treaty). 8 The Treaty of Amsterdam has unfortunately lead to what is called a Europe à deux vitesses because of the position which Denmark, Ireland and the United Kingdom hold in the process of unification of private international law. 9 Ireland and the United Kingdom both have the possibility to participate in the process by means of an optin -clause and they mostly use this clause. Only Denmark truly stays behind in the unification process. The question is, however, for how long can Denmark maintain its current position. The fact is that the European Council attaches great importance to the establishment of the Area of Freedom, Security and Justice. During the European Council meeting in Tampere in 1999, the establishment of this Area has been designated as one of the most important objectives. 3. Communitarisation of international family law It has become clear from the development of private international law in the European Union that the EU allocates itself a large role in the field of unification of rules of private international law, including the sub discipline of international family law. The EU has, however, entered the domain of international family law regulation fairly unexpected. Since the EU is a supranational organisation that has traditionally acted almost entirely for economic reasons and with economic motives, the link with family law is not obvious. A confrontation with the difficulties of (international) family law did naturally exist, but the European authorities have always taken a restrictive stance. 10 There is legal terminology in EC law as regards family, but the European Court of Justice and the Court of First Instance have sporadically intervened in matters of international family law. The existing case law mainly deals with problems regarding European 7 In addition, the European Community must take account of the principles of subsidiarity (art. 5 EC) and proportionality when drawing up common EC rules on private international law. 8 See Art. 67(5) EC-Treaty, as amended through the Treaty of Nice. In this respect, one often refers to a cultural constraints limitation, implying that cooperation within the field of family law is particularly difficult due to allegedly culturally based divergences in family law, not only as regards substantive (domestic) law but also rules on private international law. These latter rules are usually wellcoordinated in each legal system with the domestic family law rules. See also R. Baratta, Problematic elements of an implicit rule providing for mutual recognition of personal and family status in the EC, IPRax 2007, p K. Boele-Woelki and R.H. van Ooik, The Communitarization of Private International Law, in: F.W. Grosheide and E. Hondius (eds.), International Contract Law 2003, Antwerp: Intersentia 2004, p See A.V.M. Struycken, Les consequences juridiques de l intégration européenne, Recueil des Cours 1992-I, p and p and W.H. Roth, Der Einflus des Europäischen Gemeinschaftsrecht auf das Internationale Privatrecht, RabelsZ. 1991, p See also briefly on this issue K. Siehr, Family unions in private international law, NILR 2003, p

4 officials. 11 The case law shows that the European Court of Justice has traditionally been rather reserved in any interference in (international) family law of the Member States: the formulated rules are unclear and the cases have provoked a lot of critique. 12 The Treaty of Amsterdam changed all this. With this Treaty the Community entered a new phase of integration, namely, the phase of political integration. 13 The European citizen has been placed in the centre of the European construction. Moreover, as the case of Garcia Avello 14 illustrates, the European Court of Justice has detached the concept of European citizenship from its economic imperative. Harmonisation of international family law is a very sensitive subject, politically as well as legally. Reasons are that it verges on the domestic public policy-exception and that family law is by nature rooted in national legal cultures. Member States are very zealous about their competences and conceptions on family and on family law. By unifying international family law the European Union is aiming for a twofold objective: (greater) legal certainty and simplification for the union citizen. 15 The greater legal certainty depends on the existence of harmonised rules to determine the applicable law. The aim is not to harmonise the rules of substantive law in the Member States, which will remain as they are. The unification is concerned solely with the rules of private international law that designate the applicable law to a certain situation. Harmonisation of the choice of law rules will enhance mutual trust between the Member States and thus promote application of the mutual recognition principle in the Union. Rules designating the applicable law will enable courts to give judgments on the basis of rules of substantive law that are most closely connected with the situation. Most importantly, harmonised choice of law rules will ensure that the same law will be applied to a given situation, irrespective of the competent court seized, i.e. prevention of forum shopping. The main European achievement in the field of family law so far is the Regulation concerning jurisdiction and the recognition and enforcement of judgments in 11 See for a study in this field C. Kohler, La Cour de Justice des Communautés européennes et le droit international privé, Travaux du Comité français du droit international privé , p. 71 ff., especially p. 79. Meinhardt v. Commission, ECJ 17 May 1972, Case 24/71, ECR 269; Diatta v. Land Berlin, ECJ 13 February 1985, Case 267/83, ECR 567; Netherlands State v. Reed, ECJ 17 April 1986, Case 59/85, ECR 1283; José Miguel Diaz Garcia v. Parlement européen, CFI 18 December 1992,, Case T-43/90, ECR II-2619 ; and Khouri v. Commission, CFI 18 December 1992, Case T-85/91, ECR II-2637 are some examples of this European case law. 12 See C. Kohler, La Cour de Justice des Communautés européennes et le droit international privé, Travaux du Comité français du droit international privé , p. 80 e.v. 13 J. Basedow, The Communitarization of the Conflict of Laws under the Treaty of Amsterdam, CMLR 2000, p ECJ 2 October 2003, Garcia Avello v. Belgian State, Case C-148/02, ECR 2003, I See The Hague Programme: Strengthening freedom, security and justice in the European Union, adopted by the European Council 4-5 November See also Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union, Official Journal C 198, 12 August 2005.

5 matrimonial matters and matters of parental responsibility. 16 This Regulation - often referred to as Brussels II-bis has been in force in the Member States of the EU since 1 March The cooperation in the field of family law has so far focused primarily on issues such as divorce, parental responsibility, and maintenance, but also issues such as wills and succession, and matrimonial property will be unified. According to the so-called Hague Programme, the European Union s family law reform including all these issues should be concluded by the year The unification of cross-border family law has until recently only taken place as regards rules on jurisdiction and recognition and enforcement of foreign judgments. There are no common rules yet on choice of law, i.e. the question on which state s law applies to a certain case. All the above mentioned family law issues will be harmonised as regards jurisdiction, choice of law, and recognition and enforcement. Common EC rules on the law applicable to divorce have been presented by the Commission in July 2006, a project which is often called the Rome III Proposal, but which basically aims at amending and supplementing the Brussels II-bis Regulation European choice of law rules on divorce The Proposal to introduce choice of law rules in the field of divorce is the result of a consultation procedure that has been set out. In November 2004 the European Council invited the Commission to present a Green Paper on the choice of law rules in matters relating to divorce (Rome III) in Consequently, the Green Paper on Applicable Law and Jurisdiction in Divorce Matters was presented by the Commission on 14 June The Commission received approximately 65 submissions in response to the Green Paper. 20 The majority of the responses acknowledged the need to enhance legal certainty and predictability, to introduce a limited party autonomy and to prevent rush to court. In certain responses concerns are expressed that the harmonisation of choice of law rules would oblige courts to apply foreign law and that this may lead to delays and additional costs in matrimonial proceedings. 21 An international couple wishing to get divorce has hitherto been subject to the jurisdictional rules laid down in the Brussels IIbis Regulation, pursuant to which spouses are able to choose amongst a number of difference competence criteria. Once a divorce procedure comes before the courts of a Member State, the applicable law is 16 Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/ Denmark is, however, excluded, being the only Member State of the EU which, according to the terms of the Amsterdam Treaty, is not participating at all in the new civil law cooperation. Unlike the United Kingdom and Ireland, Denmark does not have a right to opt into the adopted instruments. 18 The Hague Programme: Strengthening freedom, security and justice in the European Union, adopted by the European Council 4-5 November See also Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union, Official Journal C 198, 12 August Proposal for a Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters. Brussels 17 July 2006 COM (2006) 399 final, 2006/0135 (CNS). 20 The responses are published at the following website: < 21 Such concerns are mainly expressed by Member States that presently apply the state s domestic law (lex fori) to divorce.

6 determined in accordance with that State s rules on conflict of law. Those rules differ greatly from one Member State to another. All Member States with the exception of Malta allow divorce. 22 Significant differences exist between the Member States divorce laws, concerning the grounds for divorce as well as the procedures. The divergences can be explained by several factors, such as the different family policies and cultural values. The disparate nature of common choice of law rules combined with the current Community provisions on the awarding of competence may give rise to a number of problems where international divorces are concerned. In addition to the lack of legal certainty stemming from the difficulty which spouses have in determining which law will apply to their case 23, there is also what the Commission regards as the genuine risk of a rush to court, an expression denoting a situation in which the better informed spouse will attempt to seize the jurisdiction whose law best serves his or her interests. Furthermore, Community citizens resident in a non-eu country may have trouble finding a jurisdiction which is competent to deal with divorce cases and having a divorce judgment handed down in a third country recognised in their own country. The purpose of the Commission proposal is to limit the risks and to compensate for the shortcomings as mentioned above, in particular by making it possible to choose by common agreement the competent jurisdiction and the applicable law. In doing so the Commission is responding to an inescapable reality, namely the fact that the rise in mobility of citizens within the European Union has led to a rise in the number of international marriages and, in consequence, divorces. That is to say, marriages and divorces where the spouses are of different nationalities, or live in a Member State of which neither is a national. 24 Pursuant to the proposed choice of law rules on divorce, the parties are offered a limited opportunity to choose the law applicable to their divorce. To leave the parties with an unlimited choice could result in the application of exotic laws with which the parties have little or no connection. Therefore, the Proposal determines that the choice is restricted to (a) the law of the State of the last common habitual residence of the spouses insofar as one of them still resides there, to (b) the law of the State of the nationality of either of the spouses (common domicile in case of the United Kingdom and Ireland), to (c) the law of the State where the spouses have resided for at least five years, and to (d) the law of the forum (lex fori). In the absence of a choice of the applicable law, divorce and legal separation will be subject to (a) the law of the State where the spouses have their common habitual residence, or failing that, (b) where the spouses had their last common habitual residence insofar as one of them still resides there, or failing that, (c) to the law of the State of which both spouses are nationals (both have their domicile in the case of the United Kingdom and Ireland), or failing that, (d) to the law of the State where the application is lodged (lex fori). 22 Maltese law does not allow for divorce, but recognises divorce judgments given by competent foreign courts. 23 In this connection, see document SEC (2006) 949 of 17 July 2006, p By way of illustration, the rate of international divorces is currently highest in Estonia (78%), close to 50% in Luxembourg, the Netherlands and Sweden, and 25% in Belgium, Germany, Finland and Portugal. SEC(2006) 949 of 17 September 2006, p. 8.

7 5. Outline of my thesis The research can be roughly divided into three parts: - Part I: Dutch choice of law rules concerning divorce and termination of registered partnerships. This part will contain an analysis of the Dutch choice of law rules in these two fields of law. I will elaborate on the content of the rules and the choices of the Dutch legislator. - Part II: Communautarisation of private international law in general and of choice of law rules in the field of divorce in particular. Development of private international law in the EU since 1958 (EEC-Treaty). What are the motives of the EU to develop PIL? What are the goals the EU tries to reach by means of PIL? EU-competence to draw up PIL Analysis of the European choice of law rules in the field of divorce. - Part III: Analysis of the European choice of law rules vis-à-vis the Dutch ones. This Part will consist of two distinct analyses. A formal analysis: i. Definitions what is covered by the Regulation and what is left to the Dutch choice of law rules? ii. Transitional provisions: when does the Regulation apply and when do the Dutch choice of law rules apply? iii. The proposed choice of law rules will apply universally how does this influence the application of the Dutch choice of law rules? And a substantive analysis: iv. What changes will bring about the introduction of European choice of law rules? Why do the European rules differ? Is this differentiation right and well-motivated? v. Do different principles determine the content of the choice of law rules in European context?