Anna Sapota* Jagielonian University in Kraków, Poland

THE ENHANCED COOPERATION IS IT AN INSTRUMENT EFFICIENT ENOUGH TO AVOID THE DIVERGENCE BETWEEN THE NATIONAL REGULATIONS OF PRIVATE INTERNATIONAL LAW IN THE EU? Anna Sapota* Jagielonian University in Kraków, Poland Abstract: Since the Amsterdam Treaty, the EU was vested with the competency to establish a uniformed choice of laws rules. For more than 10 years there have been implemented several regulations regarding jurisdiction, applicable law and enforcement of courts judgments. In 2010 the Rome III regulation regarding law applicable in divorce and separation matters was implemented as enhanced cooperation in 14 countries of the EU. It is interesting how such a new method of unifying private international law in the EU Member States can influence the level of convergence between their legal systems. This article will examine the new instrument of unification that has appeared the enhanced cooperation and the possible consequences of using this instrument to unify the rules of private international law. It contains a critical analysis on how the adoption of the new instrument can affect the harmonization of private international law in the EU. The paper will also answer the question, if the convergence of legal systems of the EU Member States is possible in such situation. Moreover, it will indicate the attitudes of non-participating Member States towards the implanted regulation. Furthermore, it will give examples of differences between legal systems resulting from implementation of enhanced cooperation for this regulation. The research and analysis covered by this paper will bring the conclusion that using the enhanced cooperation in the field of judicial cooperation can lead to the differentiation rather than to unification of the European law. Key words: private international law, enhanced cooperation A. INTRODUCTION This article will describe the mechanism for enhanced cooperation, which has been used to adopt the Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation 1 (hereinafter referred to as: Rome III or Rome III regulation ). The Rome III regulation is a part of the process of expanding the European Union legislation in the field of private international law. The enhanced cooperation is a new method of unifying this domain. Therefore, it is worth to analyse if this method serves its purpose. This paper will examine the new instrument of unification, which has appeared the enhanced cooperation - and the possible consequences of using this instrument to unify the rules of private * Anna Sapota, Ph. D. candidate at Jagielonian University in Kraków, Poland, Faculty of Law & Administration, Chair of Private International Law. 1 OJ L 343, 29.12.2010, p. 10-16. POLITIKA KAIP TUŠČIA VIETA 287

international law. The article will also contain a critical analysis and presentation how the adoption of the new instrument can influence the harmonization of private international law in the EU. The regulations implemented by the EU are also a part of national legal systems of the Member States and they can either efficiently unify these legal systems or make them more differentiated. This article will indicate and present the analysis regarding the possible problems with coordination of the regulations and the divergence between the legal systems within the EU. Furthermore, it will give examples of differences of legal systems resulting from implementation of enhanced cooperation for this regulation. This analysis will be closed by the conclusion that using the enhanced cooperation mechanism in the field of judicial cooperation can lead to differentiation rather than to unification of the European law. B. ENHANCED COOPERATION AS A NEW INSTRUMENT IN IPL UNIFICATION The enhanced cooperation was originally introduced by the Treaty of Amsterdam 2 in 1995. In 2009 the Treaty of Lisbon 3 improved the mechanism for enhanced cooperation 4 by amending questionable rules and grouping all provisions in one chapter. Only after these improvements the mechanism has been used for the first time in order to partially unify the conflict of laws rules. In 2010 the Council accepted the request for enhanced cooperation placed by 14 Member States 5. In 2012 Lithuania declared its access to the cooperation 6. Hence, currently there are 15 Member States where Rome III regulation is applicable. Let s look now at the instrument itself. It is designed as an instrument that enables to overcome the paralysis when all of the EU members cannot agree on some regulation as in this case. The enhanced cooperation in judicial matters is based on the article 328 (1) of the Treaty on the Functioning of the European Union 7. The initiative of enhanced cooperation of the Member States has to be accepted by the Council decision. The adopted regulation has to be in compliance with the requirements laid down in such decision. Further in any time, it has to be subjected to and 2 OJ C 340, 10.11.1997, p. 1-145. 3 OJ C 306, 17.12.2007, p. 1-231. 4 See: Bordignon M., Brusco S., On enhanced cooperation Journal of Public Economics 90 (2006), p. 2063-2090, Amtenbrink F. and Kochenov D., Towards a More Flexible Approach to Enhanced Cooperation, (The Hague: T.M.C. Asser Press, 2009), available at SSRN: http://ssrn.com/abstract=1310773 accessed on 25 May 2011, Marco Colino S., Towards Greater Flexibility or Deadlock? The Progress of European Integration Since the Introduction of Enhanced Cooperation, The Federal Trust for Education and Research, Online Paper Series 24/04. Available at SSRN: http://ssrn.com/ abstract=1701286 accessed on 25 May 2011. 5 Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia 6 2012/714/EU: Commission Decision of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 323, 22.11.2012, p. 18 19. 7 OJ C 115, p.1. 288 POLITIKA KAIP TUŠČIA VIETA

in compliance with other acts already adopted within the proper framework 8. Implementing this solution for the first time 9 created a few interesting consequences and questions related to the future means of harmonization of the law in the EU. The mechanism is indicated as the idea inseparably linked with a discussion on the flexibility in the process of integration in the EU. Both - supporters and opponents - admit that the flexibility has been an essential element in the path towards the construction of the EU and the answer for the necessity of finding the balance between the different cultures and legislation in the Member States. The concept that is fundamental for this idea is that not all of the Member States can reach the same objectives at the same time. Therefore, there should be a place for a mechanism that allows the more advance countries to strengthen the links between them and allows the less prepared countries to find the way of heading in the same direction in the future and joining the cooperation. C. NEW INSTRUMENT AS A MODE OF PRIVATE INTERNATIONAL LAW UNIFICATION 1. Appropriateness of the instrument We cannot avoid the issue regarding the appropriateness of the instrument in question in relation to conflict of law rules. Taking into account the general idea of this mechanism and its understanding while it has been drafted, it seems to be not suitable for conflict of laws 10. As of now the national law was applicable in all cases of divorce or separation between couples of different nationality. At the moment applying national laws to such cases is allowed in half of the EU Member States while the second half applies unified Rome III regulation. This situation creates two dimensions in the EU, which divides the Member States. That is how the two speeds in the EU could become visible. It means that in some countries the process of unification shall proceed faster and further than in others. As a consequence of such actions, there have been created better and worse members of the EU in respect of taking or not taking part in enhanced cooperation. This is a reflection of a conflict between the idea of flexibility in harmonization of law and the aim of achieving the unified, stable and predictable regulation in the whole EU. Obviously, there is a provision in the Treaty on the functioning of the European Union that regards the enhanced cooperation itself directly stating that the participating countries should invite and encourage nonparticipants to join the cooperation. However, in this specific case, the problem lies not in the level of integration, but rather in the content of proposed regulation. The opponents 11 of the project of regulation have not rejected it due to the fact that they were not ready for deeper integration but 8 In case of Rome III, the regulation should be in compliance mainly with Brussels II. 9 However now there is also a patent regulation. States proposing the EU patent: Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Sweden and the United Kingdom. http://www. consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/119732.pdf 10 J.-J. Kuipers, The Law Applicable to Divorce as Test Ground for Enhanced Cooperation. 11 Sweden and Finland. POLITIKA KAIP TUŠČIA VIETA 289

simply because they felt uncomfortable with the proposed choice of law rules 12. In effect, when the regulation implemented on the basis of enhanced cooperation is so similar to the rejected Commission s project of this regulation, it is highly unlikely that the main adversaries will join the cooperating Member States. 2. Coordination problems The logical consequence of the situation described above is a coordination problem. First dimension of this issue constitutes the coordination among European regulations, which deals with private international law, like Rome III regulation, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 13 (hereinafter referred to as Brussels II bis or Brussels II bis regulation ) and Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes 14 (hereinafter referred to as the Proposal ). Second dimension is the cohesion between the conflict of laws in national legal systems and the European regulations. Therefore, the practitioners will have to deal with several problems. At the beginning they will have to determine, if a given divorce case takes places in a country that participates in the enhanced cooperation. It is very likely that the concerned country will participate and the others will not. It may results in problems with determination of applicable law, especially regarding the fact that the Rome III regulation introduces the choice of applicable law by the parties, while most of national legal systems do not allow that. In many cases it will allow questioning the validity of choice made by the spouses. The parties may be deprived of more liberal rules of Rome III regulation. Next, the determination of applicable law will be also related to determination of the jurisdiction based on Brussels II bis regulation, which jurisdiction has not been adjusted to and coordinated with Rome III regulation 15. The easy way to establish a jurisdiction of a foreign court under Brussels II bis rules will be to encourage the spouses to forum shopping that would depend on their interest in obtaining the judgement based on Rome III regulation. Additionally, the initial project of Rome III regulation included the amendments to Brussels II bis regulation and it planned to introduce the agreement on jurisdiction in divorce matters. It would coordinate the rules applicable to choice of law and choice of court. Not only the parties autonomy would have developed significantly in this field but also the harmonisation of law and jurisdiction in divorce matters would have progressed. 12 K. Boele-Woelki, For Better and For Worse: The Europeanization Of International Divorce Law (2010) Yearbook of Private International Law 1-26. 13 OJ L 338, 23.12.2003, p. 1 29. 14 COM/2011/0126 final - CNS 2011/0059. 15 B. Campuzano Diaz, The Coordination of the EU Regulations on Divorce and Legal Separation with the Proposal on Matrimonial Property Regimes (2011) Yearbook of Private International Law 233-255. 290 POLITIKA KAIP TUŠČIA VIETA

At last, the practitioners will have to set the judgement against the exequatur procedure in Brussels II bis regulation. Under the provisions of Brussels II bis regulation a court will not take into account the differences among conflict of laws rules while deciding on exequatur. The judgements of the participating Member States will not be granted with any benefits in the procedure 16. 3. Divergence of national legal systems As it has been assumed by the author, the major aim in unification of private international law in the EU is to provide the citizens with legal certainty resulting from the convergence of conflict of laws rules in the field of divorce. In this situation, it is quite obvious that the effect is opposite to this purpose. The chance that all non-participating countries will join the cooperation is minimal. The question is, if in such case the opposing countries would not like to create different common rules by the countries outside of this enhanced cooperation. The countries sharing similar legal culture and social background - like for example Nordic countries - can create common standards for law applicable in divorce matter (as there exist the Nordic convention on marital matters). Even though it seems difficult to adopt second different regulation on law applicable in divorce matters by the mechanism of enhanced cooperation. Particularly regarding the fact that establishing different systems of conflict-of-laws rules within the common judicial area would probably contradict the objectives of the EU. The council should not accept any new initiative in this field 17. Nevertheless, there is no instrument that could prevent countries from concluding an international convention regarding this particular matter 18. Especially that the loyalty obligation imposed on the EU Member States cannot be interpreted so widely in case of divided competencies. Consequently, two or even three different conflicts of laws in divorce matters regulations in the EU countries would coexist at the same time. The introduction of the mechanism for enhanced cooperation reminds the unification of the conflict-of-law rules as it was made by international conventions (like for example the Hague conventions) when different conventions related to different matters in private international law weres signed and ratified each time by the different states. The effect is the same in case of a partial unification by means of enhanced cooperation. The countries that do not wish to join the enhanced cooperation can use regular international instruments (like treaties) to establish common rules in the field of divorce matters. So instead of unifying the conflict of laws rules in divorce matters, the number of unified regulations will be multiplied. The system of legal sources becomes more and more complicated and there is no room for the convergence of the conflict of law rules applicable in divorce matters. 16 S. Marinai, Matrimonial Matters And The Harmonization Of Conflict Of Laws: A Way To Reduce The Role Of Public Policy As A Ground For Non-Recognition Of Judgments (2011) Yearbook of Private International Law 255-272. 17 There are some authors who even accept the possibility of creating new regulation based on the mechanism of enhanced cooperation. See: K. Boele-Woelki, To be, or Not to Be: Enhanced Cooperation in International Divorce Law within the European Union, (2008), Victoria University of Wellington Law Review 779-792 (784). 18 Especially taking into account that the competence of EU to establishing conflict-of-law rules in family matters is disputable among the Member States and secondly, that some countries have not decided to participate in the judicial cooperation in full scope. POLITIKA KAIP TUŠČIA VIETA 291

D. MALTA EXAMPLE At the moment of approving the enhanced cooperation mechanism Malta was the sole participating Member State whose law did not provide any mechanism for pronouncing a divorce under its procedural and material law. It also influenced the content of the Rome III regulation. The specific clause was dedicated to deal with the problem of Malta s lack of such institution. Article 13 of Rome III regulation provides: Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation. In effect, Malta had no obligation to apply the rules of the Rome III regulation, which it participates in. So even among the countries that have opted in the enhanced cooperation there was no real convergence of legal systems. In practice the Malta court would not apply the conflict of law rules arising from Rome III regulation if such rules had led to pronouncing divorce. The result would be as if lex forum had been applied in this case. This situation was changed recently as on July 25, 2011 when Malta s Parliament approved the divorce bill. The law came into effect on October 1, 2011. So the level of convergence between the national legal systems of participating Member States has been improved. E. CONCLUSION All in all, there is a matter of positive and negative consequences of using enhanced cooperation to introduce the conflict of laws rules. This mechanism that was introduced in more than a half of the EU Member States unified the conflicts of laws rules in the field of divorce matters. But the question is, if this resulted in real convergence of national legal systems in the EU? The answer is no. The accepted solution does not assure the greater stability and predictability of law for the citizens. It should be reminded that the EU citizens are more and more convinced and got used to the fact that the most of regulations in the EU are harmonized or unified. They expect the convergence of legal systems between the Member States. It leads to belief that the regulation introduced by means of enhanced cooperation is applicable in all of the EU Member States. In such a case the parties may be mistaken while they decide about the law applicable to their case, if they apply for a divorce in a country that stays out of the enhanced cooperation. The enhanced co-operation method can be a useful and important mechanism in the development of the European integration. However, in the field of private international law it should be considered more as an additional tool for assuring flexibility in situations when there is no other possible solution but followed by more effective mechanisms like regulations. Particularly, it can be helpful when the purposes, scope of regulation and proposed rules are acceptable for all Member States, but they are also difficult for adoption in all Member States at once. Implementing such mechanism should not come as a consequence of failure in reaching the compromise among all Member States on specific topic. The enhanced cooperation cannot replace the consensus of the Member States, because instead of converging national legal systems, it multiplies the possibilities of differentiating them. 292 POLITIKA KAIP TUŠČIA VIETA