EUR-Lex Access to European Union law
This document is an excerpt from the EUR-Lex website
Document 52010AP0477
Law applicable to divorce and legal separation * European Parliament legislative resolution of 15 December 2010 on the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (COM(2010)0105 – C7-0315/2010 – 2010/0067(CNS))
Law applicable to divorce and legal separation * European Parliament legislative resolution of 15 December 2010 on the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (COM(2010)0105 – C7-0315/2010 – 2010/0067(CNS))
Law applicable to divorce and legal separation * European Parliament legislative resolution of 15 December 2010 on the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (COM(2010)0105 – C7-0315/2010 – 2010/0067(CNS))
OJ C 169E, 15.6.2012, p. 205–217
(BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
15.6.2012 |
EN |
Official Journal of the European Union |
CE 169/205 |
Wednesday 15 December 2010
Law applicable to divorce and legal separation *
P7_TA(2010)0477
European Parliament legislative resolution of 15 December 2010 on the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (COM(2010)0105 – C7-0315/2010 – 2010/0067(CNS))
2012/C 169 E/41
(Special legislative procedure – consultation – enhanced cooperation)
The European Parliament,
— |
having regard to the Commission proposal to the Council (COM(2010)0105), |
— |
having regard to Article 81(3) of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0315/2010), |
— |
having regard to its position of 16 June 2010 (1), giving its consent to the draft Council decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation, |
— |
having regard to Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2), |
— |
having regard to the opinion of the European Economic and Social Committee of 14 July 2010, |
— |
having regard to Rules 55 and 74g(3) of its Rules of Procedure, |
— |
having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women’s Rights and Gender Equality (A7-0360/2010), |
1. |
Approves the Commission proposal as amended; |
2. |
Calls on the Commission to alter its proposal accordingly, pursuant to Article 293(2) of the Treaty on the Functioning of the European Union; |
3. |
Calls on the Commission to submit a proposal for amendment of Regulation (EC) No 2201/2003, limited to the addition of a clause on forum necessitatis, as a matter of great urgency before the promised general review of that Regulation; |
4. |
Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament; |
5. |
Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially; |
6. |
Instructs its President to forward its position to the Council, the Commission and the national parliaments. |
TEXT PROPOSED BY THE COMMISSION |
AMENDMENT |
||||||||||||||||
Amendment 1 |
|||||||||||||||||
Proposal for a regulation Citation 2 |
|||||||||||||||||
Having regard to Council Decision […] of […] authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (3), |
Having regard to Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (4), |
||||||||||||||||
Amendment 2 |
|||||||||||||||||
Proposal for a regulation Recital 1 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 3 |
|||||||||||||||||
Proposal for a regulation Recital 2 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 4 |
|||||||||||||||||
Proposal for a regulation Recital 6 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 5 |
|||||||||||||||||
Proposal for a regulation Recital 7 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 6 |
|||||||||||||||||
Proposal for a regulation Recital 8 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 7 |
|||||||||||||||||
Proposal for a regulation Recital 9 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 8 |
|||||||||||||||||
Proposal for a regulation Recital 10 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 9 |
|||||||||||||||||
Proposal for a regulation Recital 10 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 10 |
|||||||||||||||||
Proposal for a regulation Recital 11 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 11 |
|||||||||||||||||
Proposal for a regulation Recital 12 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 12 |
|||||||||||||||||
Proposal for a regulation Recital 13 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 13 |
|||||||||||||||||
Proposal for a regulation Recital 14 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 14 |
|||||||||||||||||
Proposal for a regulation Recital 15 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 15 |
|||||||||||||||||
Proposal for a regulation Recital 15 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 16 |
|||||||||||||||||
Proposal for a regulation Recital 16 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 17 |
|||||||||||||||||
Proposal for a regulation Recital 17 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 19 |
|||||||||||||||||
Proposal for a regulation Recital 19 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 20 |
|||||||||||||||||
Proposal for a regulation Recital 19 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 21 |
|||||||||||||||||
Proposal for a regulation Recital 19 b (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 22 |
|||||||||||||||||
Proposal for a regulation Recital 20 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 23 |
|||||||||||||||||
Proposal for a regulation Recital 21 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 24 |
|||||||||||||||||
Proposal for a regulation Recital 21 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 25 |
|||||||||||||||||
Proposal for a regulation Recital 22 |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 26 |
|||||||||||||||||
Proposal for a regulation Recital 22 a (new) |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 29 |
|||||||||||||||||
Proposal for a regulation Article 1 – paragraph 1a (new) |
|||||||||||||||||
|
1a. This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings:
|
||||||||||||||||
Amendment 30 |
|||||||||||||||||
Proposal for a regulation Article 1 – paragraph 2 |
|||||||||||||||||
2. For the purposes of this Regulation, ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Council Decision […] of […] authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. |
2. For the purposes of this Regulation, ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation , or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union . |
||||||||||||||||
Amendment 31 |
|||||||||||||||||
Proposal for a regulation Article 1 a (new) |
|||||||||||||||||
|
Article 1a Relationship with Regulation (EC) No 2201/2003 This Regulation shall not affect the application of Regulation (EC) No 2201/2003. |
||||||||||||||||
Amendment 32 |
|||||||||||||||||
Proposal for a regulation Article 1 b (new) |
|||||||||||||||||
|
Article 1b Definition For the purposes of this Regulation, the term ‘court’ shall cover all authorities in the participating Member States having jurisdiction in the matters falling within the scope of this Regulation. |
||||||||||||||||
Amendment 34 |
|||||||||||||||||
Proposal for a regulation Article 3 – paragraph 1 – introductory wording |
|||||||||||||||||
1. The spouses may choose by mutual agreement the law applicable to divorce and legal separation, provided that such law is in conformity with the fundamental rights defined in the Treaties and in the Charter of Fundamental Rights of the European Union and with the principle of public policy, from among the following laws: |
1. The spouses may agree to designate the law applicable to divorce and legal separation, provided that it is one of the following laws: |
||||||||||||||||
Amendment 39 |
|||||||||||||||||
Proposal for a regulation Article 3 – paragraph 3 |
|||||||||||||||||
3. The agreement referred to in paragraph 2 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time of conclusion of the agreement lays down additional formal requirements for this type of agreement, those requirements shall apply. If the spouses are habitually resident in different participating Member States and the laws of those Member States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. |
3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum. |
||||||||||||||||
Amendment 40 |
|||||||||||||||||
Proposal for a regulation Article 3 – paragraph 4 |
|||||||||||||||||
4. If the lex fori so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the lex fori. |
deleted |
||||||||||||||||
Amendment 41 |
|||||||||||||||||
Proposal for a regulation Article 3 a (new) |
|||||||||||||||||
|
Article 3a Consent and material validity 1. The existence and validity of an agreement on choice of law or of any term thereof shall be determined by the law which would govern it under this Regulation if the agreement or term were valid. 2. Nevertheless, a spouse, in order to establish that he or she did not consent, may rely on the law of the country in which he or she has his or her habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his or her conduct in accordance with the law specified in paragraph 1. |
||||||||||||||||
Amendment 42 |
|||||||||||||||||
Proposal for a regulation Article 3 b (new) |
|||||||||||||||||
|
Article 3b Formal validity 1. The agreement referred to in Article 3(1) and (2) shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. However, if the law of the participating Member State in which the spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for agreements of that type, those requirements shall apply. 3. If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States lay down different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for agreements of that type, those requirements shall apply. |
||||||||||||||||
Amendment 43 |
|||||||||||||||||
Proposal for a regulation Article 4 a (new) |
|||||||||||||||||
|
Article 4a Conversion of legal separation into divorce 1. Where a legal separation is converted into a divorce, the law applicable to the divorce shall be the law applied to the legal separation, unless the parties have agreed otherwise in accordance with Article 3. 2. However, if the law applied to the legal separation does not provide for the conversion of legal separation into divorce, Article 4 shall apply, unless the parties have agreed otherwise in accordance with Article 3. |
||||||||||||||||
Amendment 45 |
|||||||||||||||||
Proposal for a regulation Article 7 a (new) |
|||||||||||||||||
|
Article 7a Differences in national law 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 decree of divorce by virtue of the application of this Regulation. |
||||||||||||||||
Amendment 46 |
|||||||||||||||||
Proposal for a regulation Article 8 |
|||||||||||||||||
States with more than one legal system |
States with two or more legal systems – territorial |
||||||||||||||||
1. Where a State comprises several territorial units each of which has its own rules of law in respect of divorce and legal separation, each territorial unit shall be considered a State for the purpose of determining the law applicable under this Regulation. |
1. Where a State comprises several territorial units each of which has its own rules of law in respect of divorce and legal separation, each territorial unit shall be considered a State for the purpose of determining the law applicable under this Regulation. 1a. In relation to such a State:
|
||||||||||||||||
Amendment 47 |
|||||||||||||||||
Proposal for a regulation Article 8 a (new) |
|||||||||||||||||
|
Article 8a States with two or more legal systems – inter-personal conflicts In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as a reference to the legal system determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouse or spouses has or have the closest connection applies. |
||||||||||||||||
Amendment 48 |
|||||||||||||||||
Proposal for a regulation Article 8 b (new) |
|||||||||||||||||
|
Article 8b Non-application of this Regulation to internal conflicts A participating Member State in which different systems of law or sets of rules apply to matters governed by this Regulation shall not be required to apply this Regulation to conflicts of law arising solely between such different systems of law or sets of rules. |
||||||||||||||||
Amendment 49 |
|||||||||||||||||
Proposal for a regulation Article 9 – paragraph 1 – point a |
|||||||||||||||||
|
|
||||||||||||||||
Amendment 51 |
|||||||||||||||||
Proposal for a regulation Article 10 – paragraph 1 – subparagraph 2 |
|||||||||||||||||
However, effect shall also be given to an agreement on the choice of the applicable law concluded in accordance with the law of a participating Member State before the date of application of this Regulation, provided that it fulfils the conditions set out in the first paragraph of Article 3(3) . |
However, effect shall also be given to an agreement on the choice of the applicable law concluded before the date of application of this Regulation, provided that it complies with Articles 3a and 3b . |
||||||||||||||||
Amendment 52 |
|||||||||||||||||
Proposal for a regulation Article 11 – paragraph 1 |
|||||||||||||||||
1. Without prejudice to the obligations of the participating Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not affect the application of bilateral or multilateral conventions to which one or more participating Member States are party at the time of adoption of this Regulation and which relate to the subjects covered by it. |
1. This Regulation shall not affect the application of international conventions to which one or more participating Member States are party at the time when this Regulation is adopted or when the decision referred to in Article 1(2) is adopted and which lay down conflict-of-law rules relating to divorce or separation . |
||||||||||||||||
Amendment 53 |
|||||||||||||||||
Proposal for a regulation Article 11 – paragraph 2 |
|||||||||||||||||
2. Notwithstanding paragraph 1 , this Regulation shall take precedence as between participating Member States over conventions which relate to subjects governed by this Regulation and to which the participating Member States are party . |
2. However , this Regulation shall, as between participating Member States , take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation. |
||||||||||||||||
Amendment 54 |
|||||||||||||||||
Proposal for a regulation Article 12 – paragraph 1 |
|||||||||||||||||
By [ five years after the entry into force of this Regulation ] at the latest, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposed amendments . |
1. By five years after the entry into force of this Regulation at the latest, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposals to adapt this Regulation . |
||||||||||||||||
Amendment 55 |
|||||||||||||||||
Proposal for a regulation Article 12 – paragraph 1 a (new) |
|||||||||||||||||
|
1a. To that end, the participating Member States shall communicate to the Commission relevant information on the application of this Regulation by their courts. |
||||||||||||||||
Amendment 56 |
|||||||||||||||||
Proposal for a regulation Article 13 – paragraph 2 a (new) |
|||||||||||||||||
|
For those Member States participating pursuant to a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned. |
(1) Texts adopted, P7_TA(2010)0216.
(2) OJ L 189, 22.7.2010, p. 12.
(3) OJ L […], […], p. […] .
(4) OJ L 189, 22.7.2010 , p. 12 .
(5) OJ L 174, 27.6.2001, p. 25.
(6) OJ L 168, 30.6.2009, p. 35.