12.8.2011   

EN

Official Journal of the European Union

CE 236/179

A.

whereas on 17 July 2006 the Commission adopted a proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (‘Rome III’) (COM(2006)0399),

B.

whereas that proposal was based on Articles 61(c) and 67(1) of the EC Treaty, which required a unanimous vote in the Council,

C.

whereas on 21 October 2008 Parliament, acting under the consultation procedure, approved the Commission proposal as amended (1),

D.

whereas, already by mid-2008, it had become clear that some Member States had specific problems which made it impossible for them to accept the proposed regulation; whereas, in particular, one Member State was unable to accept that its courts might have to apply foreign divorce law, which it regarded as more restrictive than its own divorce law, and wished to continue applying its own substantive law to any divorce sought in its courts; whereas, in contrast, a large majority of Member States considered that rules on applicable law were an essential element of the proposed regulation and that such rules would in some cases entail courts applying foreign law,

E.

whereas, at its meeting on 5 and 6 June 2008, the Council concluded that ‘there was no unanimity to go ahead with the proposed regulation and that insurmountable difficulties existed, making a decision requiring unanimity impossible now and in the foreseeable future’ and that ‘the objectives of the proposed regulation could not be attained within a reasonable period by applying the relevant provisions of the Treaties’,

F.

whereas, according to Article 20 of the Treaty on European Union, a minimum of nine Member States may establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences, while using its institutions and exercising those competences by applying the provisions of the Treaties, subject to the limits and in accordance with the arrangements laid down in that Article and in Articles 326 to 334 of the Treaty on the Functioning of the European Union,

G.

whereas, to date, fourteen Member States (2) have indicated their intention to establish enhanced cooperation between themselves in the area of the law applicable in matrimonial matters,

H.

whereas Parliament has verified compliance with Article 20 of the Treaty on European Union and Articles 326 to 334 of the Treaty on the Functioning of the European Union,

I.

whereas, in particular, this enhanced cooperation may be regarded as enhancing the Union's objectives, protecting its interests and reinforcing its integration process within the meaning of Article 20 of the Treaty on European Union, in the light of the Commission's extensive consultation of stakeholders as part of its impact assessment in connection with its Green Paper (COM(2005)0082), the large number of ‘international’ marriages and the approximately 140 000 divorces with an international element in the Union in 2007, bearing in mind that two of the countries intending to participate in the enhanced cooperation, Germany and France, had the highest share of new ‘international’ divorces in that year,

J.

whereas harmonisation of conflict-of-law rules will facilitate the mutual recognition of judgments in the area of freedom, security and justice in that it will reinforce mutual trust; whereas at present 26 different sets of conflict-of-law rules as regards divorce exist in the Member States participating in judicial cooperation in civil matters, and the establishment of enhanced cooperation in this field will reduce this number to 13, thus making for greater harmonisation of the rules of private international law and reinforcing the integration process,

K.

whereas it appears clearly from the antecedents of this initiative that the proposed decision is being put forward in the last resort and that the objectives of the cooperation could not be attained within a reasonable period; whereas at least nine Member States intend to participate in it; whereas, therefore, the requirements of Article 20 of the Treaty on European Union are satisfied,

L.

whereas the requirements of Articles 326 to 334 of the Treaty on the Functioning of the European Union are also satisfied,

M.

whereas in particular enhanced cooperation in this area complies with the Treaties and Union law since it will not affect the acquis, since the only Union rules existing in this area relate to jurisdiction, recognition and enforcement of judgments and not to the applicable law; whereas it will not cause any discrimination on grounds of nationality contrary to Article 18 of the Treaty on the Functioning of the European Union, since the proposed conflict-of-law rules will apply to all parties before the courts of the participating Member States irrespective of their nationality or residence,

N.

whereas enhanced cooperation will not undermine the internal market or social and territorial cohesion and will not constitute a barrier to or discrimination in trade between Member States or distort competition; whereas, instead, it will facilitate the proper functioning of the internal market by eliminating possible obstacles to the free movement of persons and simplify matters for individuals and practitioners in the participating Member States, without causing any discrimination to arise as between citizens,

O.

whereas enhanced cooperation will respect the rights, competences and obligations of the non-participating Member States in so far as they will maintain their existing private international law rules in this area; whereas there are no international agreements between participating and non-participating Member States which would be breached by enhanced cooperation; and whereas it will not interfere with the Hague Conventions on parental responsibility and maintenance obligations,

P.

whereas Article 328(1) of the Treaty on the Functioning of the European Union provides that enhanced cooperation is to be open at any time to all Member States that wish to participate,

Q.

whereas Article 333(2) of the Treaty on the Functioning of the European Union allows the Council (or, more precisely, those members of the Council representing the Member States participating in enhanced cooperation) to adopt a decision stipulating that it will act under the ordinary legislative procedure, rather that the special legislative procedure provided for in Article 81(3) of the Treaty on the Functioning of the European Union, under which Parliament is merely consulted,

1.

Consents to the draft Council decision;

2.

Calls on the Council to adopt a decision pursuant to Article 333(2) of the Treaty on the Functioning of the European Union stipulating that, when it comes to the proposal for a Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, it will act under the ordinary legislative procedure;

3.

Instructs its President to forward its position to the Council and the Commission.