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Document 02016R1103-20160708
Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
Consolidated text: Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
02016R1103 — EN — 08.07.2016 — 000.002
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COUNCIL REGULATION (EU) 2016/1103 of 24 June 2016 (OJ L 183 8.7.2016, p. 1) |
Corrected by:
COUNCIL REGULATION (EU) 2016/1103
of 24 June 2016
implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
CHAPTER I
SCOPE AND DEFINITIONS
Article 1
Scope
It shall not apply to revenue, customs or administrative matters.
The following shall be excluded from the scope of this Regulation:
the legal capacity of spouses;
the existence, validity or recognition of a marriage;
maintenance obligations;
the succession to the estate of a deceased spouse;
social security;
the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage;
the nature of rights in rem relating to a property; and
any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.
Article 2
Competence in matters of matrimonial property regimes within the Member States
This Regulation shall not affect the competence of the authorities of the Member States to deal with matters of matrimonial property regimes.
Article 3
Definitions
For the purposes of this Regulation:
‘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;
‘matrimonial property agreement’ means any agreement between spouses or future spouses by which they organise their matrimonial property regime;
‘authentic instrument’ means a document in a matter of a matrimonial property regime which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
relates to the signature and the content of the authentic instrument; and
has been established by a public authority or other authority empowered for that purpose by the Member State of origin;
‘decision’ means any decision in a matter of a matrimonial property regime given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;
‘court settlement’ means a settlement in a matter of matrimonial property regime which has been approved by a court, or concluded before a court in the course of proceedings;
‘Member State of origin’ means the Member State in which the decision has been given, the authentic instrument drawn up, or the court settlement approved or concluded;
‘Member State of enforcement’ means the Member State in which recognition and/or enforcement of the decision, the authentic instrument, or the court settlement is requested.
For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of matrimonial property regimes which exercise judicial functions or act by delegation of power by a judicial authority or under its control, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard, and provided that their decisions under the law of the Member State in which they operate:
may be made the subject of an appeal to or review by a judicial authority; and
have a similar force and effect as a decision of a judicial authority on the same matter.
The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 64.
CHAPTER II
JURISDICTION
Article 4
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.
Article 5
Jurisdiction in cases of divorce, legal separation or marriage annulment
Jurisdiction in matters of matrimonial property regimes under paragraph 1 shall be subject to the spouses' agreement where the court that is seised to rule on the application for divorce, legal separation or marriage annulment:
is the court of a Member State in which the applicant is habitually resident and the applicant had resided there for at least a year immediately before the application was made, in accordance with the fifth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003;
is the court of a Member State of which the applicant is a national and the applicant is habitually resident there and had resided there for at least six months immediately before the application was made, in accordance with sixth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003;
is seised pursuant to Article 5 of Regulation (EC) No 2201/2003 in cases of conversion of legal separation into divorce; or
is seised pursuant to Article 7 of Regulation (EC) No 2201/2003 in cases of residual jurisdiction.
Article 6
Jurisdiction in other cases
Where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles, jurisdiction to rule on a matter of the spouses' matrimonial property regime shall lie with the courts of the Member State:
in whose territory the spouses are habitually resident at the time the court is seised; or failing that
in whose territory the spouses were last habitually resident, insofar as one of them still resides there at the time the court is seised; or failing that
in whose territory the respondent is habitually resident at the time the court is seised; or failing that
of the spouses' common nationality at the time the court is seised.
Article 7
Choice of court
Article 8
Jurisdiction based on the appearance of the defendant
Article 9
Alternative jurisdiction
In other cases, jurisdiction to rule on the matrimonial property regime shall lie with the courts of any other Member State pursuant to Article 6 or 8, or the courts of the Member State of the conclusion of the marriage.
Article 10
Subsidiary jurisdiction
Where no court of a Member State has jurisdiction pursuant to Article 4, 5, 6, 7 or 8, or when all the courts pursuant to Article 9 have declined jurisdiction and no court has jurisdiction pursuant to Article 9(2), the courts of a Member State shall have jurisdiction in so far as immoveable property of one or both spouses are located in the territory of that Member State, but in that event the court seised shall have jurisdiction to rule only in respect of the immoveable property in question.
Article 11
Forum necessitatis
Where no court of a Member State has jurisdiction pursuant to Article 4, 5, 6, 7, 8 or 10, or when all the courts pursuant to Article 9 have declined jurisdiction and no court of a Member State has jurisdiction pursuant to Article 9(2) or Article 10, the courts of a Member State may, on an exceptional basis, rule on a matrimonial property regime case if proceedings cannot reasonably be brought or conducted or would be impossible in a third state with which the case is closely connected.
The case must have a sufficient connection with the Member State of the court seised.
Article 12
Counterclaims
The court in which proceedings are pending pursuant to Article 4, 5, 6, 7, 8, 9 (2), 10 or 11 shall also have jurisdiction to rule on a counterclaim if it falls within the scope of this Regulation.
Article 13
Limitation of proceedings
Article 14
Seising a court
For the purpose of this Chapter, a court shall be deemed to be seised:
at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the defendant;
if the document has to be served before being lodged with the court, at a time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court; or
if the proceedings are opened on the court's own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.
Article 15
Examination as to jurisdiction
Where a court of a Member State is seised of a matter of matrimonial property regime over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.
Article 16
Examination as to admissibility
Article 17
Lis pendens
Article 18
Related actions
Article 19
Provisional, including protective, measures
Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.
CHAPTER III
APPLICABLE LAW
Article 20
Universal application
The law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State.
Article 21
Unity of the applicable law
The law applicable to a matrimonial property regime pursuant to Article 22 or 26 shall apply to all assets falling under that regime, regardless of where the assets are located.
Article 22
Choice of the applicable law
The spouses or future spouses may agree to designate, or to change, the law applicable to their matrimonial property regime, provided that that law is one of the following:
the law of the State where the spouses or future spouses, or one of them, is habitually resident at the time the agreement is concluded; or
the law of a State of nationality of either spouse or future spouse at the time the agreement is concluded.
Article 23
Formal validity of the agreement on a choice of applicable law
Article 24
Consent and material validity
Article 25
Formal validity of a matrimonial property agreement
If the spouses are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for matrimonial property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.
If only one of the spouses is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for matrimonial property agreements, those requirements shall apply.
Article 26
Applicable law in the absence of choice by the parties
In the absence of a choice-of-law agreement pursuant to Article 22, the law applicable to the matrimonial property regime shall be the law of the State:
of the spouses' first common habitual residence after the conclusion of the marriage; or, failing that
of the spouses' common nationality at the time of the conclusion of the marriage; or, failing that
with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances.
By way of exception and upon application by either spouse, the judicial authority having jurisdiction to rule on matters of the matrimonial property regime may decide that the law of a State other than the State whose law is applicable pursuant to point (a) of paragraph 1 shall govern the matrimonial property regime if the applicant demonstrates that:
the spouses had their last common habitual residence in that other State for a significantly longer period of time than in the State designated pursuant to point (a) of paragraph 1; and
both spouses had relied on the law of that other State in arranging or planning their property relations.
The law of that other State shall apply as from the conclusion of the marriage, unless one spouse disagrees. In the latter case, the law of that other State shall have effect as from the establishment of the last common habitual residence in that other State.
The application of the law of the other State shall not adversely affect the rights of third parties deriving from the law applicable pursuant to point (a) of paragraph 1.
This paragraph shall not apply when the spouses have concluded a matrimonial property agreement before the establishment of their last common habitual residence in that other State.
Article 27
Scope of the applicable law
The law applicable to the matrimonial property regime pursuant to this Regulation shall govern, inter alia:
the classification of property of either or both spouses into different categories during and after marriage;
the transfer of property from one category to the other one;
the responsibility of one spouse for liabilities and debts of the other spouse;
the powers, rights and obligations of either or both spouses with regard to property;
the dissolution of the matrimonial property regime and the partition, distribution or liquidation of the property;
the effects of the matrimonial property regime on a legal relationship between a spouse and third parties; and
the material validity of a matrimonial property agreement.
Article 28
Effects in respect of third parties
The third party is deemed to possess the knowledge of the law applicable to the matrimonial property regime, if:
that law is the law of:
the State whose law is applicable to the transaction between a spouse and the third party;
the State where the contracting spouse and the third party have their habitual residence; or,
in cases involving immoveable property, the State in which the property is situated;
or
either spouse had complied with the applicable requirements for disclosure or registration of the matrimonial property regime specified by the law of:
the State whose law is applicable to the transaction between a spouse and the third party;
the State where the contracting spouse and the third party have their habitual residence; or
in cases involving immoveable property, the State in which the property is situated.
Where the law applicable to the matrimonial property regime between the spouses cannot be invoked by a spouse against a third party by virtue of paragraph 1, the effects of the matrimonial property regime in respect of the third party shall be governed:
by the law of the State whose law is applicable to the transaction between a spouse and the third party; or
in cases involving immoveable property or registered assets or rights, by the law of the State in which the property is situated or in which the assets or rights are registered.
Article 29
Adaptation of rights in rem
Where a person invokes a right in rem to which he is entitled under the law applicable to the matrimonial property regime and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.
Article 30
Overriding mandatory provisions
Article 31
Public policy (ordre public)
The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.
Article 32
Exclusion of renvoi
The application of the law of any State specified by this Regulation means the application of the rules of law in force in that State other than its rules of private international law.
Article 33
States with more than one legal system — territorial conflicts of laws
In the absence of such internal conflict-of-laws rules:
any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the habitual residence of the spouses, be construed as referring to the law of the territorial unit in which the spouses have their habitual residence;
any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the spouses, be construed as referring to the law of the territorial unit with which the spouses have the closest connection;
any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of the territorial unit in which the relevant element is located.
Article 34
States with more than one legal system — inter-personal conflicts of laws
In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of matrimonial property regimes, any reference to the law of such a State shall be construed as referring to the system of law or set of rules 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 spouses have the closest connection shall apply.
Article 35
Non-application of this Regulation to internal conflicts of laws
A Member State which comprises several territorial units each of which has its own rules of law in respect of matrimonial property regimes shall not be required to apply this Regulation to conflicts of laws arising between such units only.
CHAPTER IV
RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS
Article 36
Recognition
Article 37
Grounds of non-recognition
A decision shall not be recognised:
if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought;
where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;
if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;
if it is irreconcilable with an earlier decision given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
Article 38
Fundamental rights
Article 37 of this Regulation shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles recognised in the Charter, in particular in Article 21 thereof on the principle of non-discrimination.
Article 39
Prohibition of review of jurisdiction of the court of origin
Article 40
No review as to substance
Under no circumstances may a decision given in a Member State be reviewed as to its substance.
Article 41
Staying of recognition proceedings
A court of a Member State in which recognition is sought of a decision given in another Member State may stay the proceedings if an ordinary appeal against the decision has been lodged in the Member State of origin.
Article 42
Enforceability
Decisions given in a Member State and enforceable in that State shall be enforceable in another Member State when, on the application of any interested party, they have been declared enforceable there in accordance with the procedure provided for in Articles 44 to 57.
Article 43
Determination of domicile
To determine whether, for the purposes of the procedure provided for in Articles 44 to 57, a party is domiciled in the Member State of enforcement, the court seised shall apply the internal law of that Member State.
Article 44
Jurisdiction of local courts
Article 45
Procedure
The application shall be accompanied by the following documents:
a copy of the decision which satisfies the conditions necessary to establish its authenticity;
the attestation issued by the court or competent authority of the Member State of origin using the form established in accordance with the advisory procedure referred to in Article 67(2), without prejudice to Article 46.
Article 46
Non-production of the attestation
Article 47
Declaration of enforceability
The decision shall be declared enforceable immediately on completion of the formalities set out in Article 45 without any review under Article 37. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.
Article 48
Notice of the decision on the application for a declaration of enforceability
Article 49
Appeal against the decision on the application for a declaration of enforceability
Article 50
Procedure to contest the decision given on appeal
The decision given on the appeal may be contested only by the procedure communicated by the Member State concerned to the Commission in accordance with Article 64.
Article 51
Refusal or revocation of a declaration of enforceability
The court with which an appeal is lodged under Article 49 or Article 50 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Article 37. It shall give its decision without delay.
Article 52
Staying of proceedings
The court with which an appeal is lodged under Article 49 or Article 50 shall, on the application of the party against whom enforcement is sought, stay the proceedings if the enforceability of the decision is suspended in the Member State of origin by reason of an appeal.
Article 53
Provisional, including protective, measures
Article 54
Partial enforceability
Article 55
Legal aid
An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in any proceedings for a declaration of enforceability, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State of enforcement.
Article 56
No security, bond or deposit
No security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition, enforceability or enforcement of a decision given in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the Member State of enforcement in the Member State of enforcement.
Article 57
No charge, duty or fee
In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State of enforcement.
CHAPTER V
AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS
Article 58
Acceptance of authentic instruments
A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 67(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin.
Article 59
Enforceability of authentic instruments
Article 60
Enforceability of court settlements
CHAPTER VI
GENERAL AND FINAL PROVISIONS
Article 61
Legalisation and other similar formalities
No legalisation or other similar formality shall be required in respect of documents issued in a Member State in the context of this Regulation.
Article 62
Relations with existing international conventions
Article 63
Information made available to the public
The Member States shall, with a view to making the information available to the public within the framework of the European Judicial Network in civil and commercial matters, provide the Commission with a short summary of their national legislation and procedures relating to matrimonial property regimes, including information on the type of authority which has competence in matters of matrimonial property regimes and on the effects in respect of third parties referred to in Article 28.
The Member States shall keep the information permanently updated.
Article 64
Information on contact details and procedures
By 29 April 2018, the Member States shall communicate to the Commission:
the courts or authorities with competence to deal with applications for a declaration of enforceability in accordance with Article 44(1) and with appeals against decisions on such applications in accordance with Article 49(2);
the procedures to contest the decision given on appeal referred to in Article 50.
The Member States shall apprise the Commission of any subsequent changes to that information.
Article 65
Establishment and subsequent amendment of the list containing the information referred to in Article 3(2)
Article 66
Establishment and subsequent amendment of the attestations and forms referred to in point (b) of Article 45(3) and Articles 58, 59 and 60
The Commission shall adopt implementing acts establishing and subsequently amending the attestations and forms referred to in point (b) of Article 45(3) and Articles 58, 59 and 60. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 67(2).
Article 67
Committee procedure
Article 68
Review clause
Article 69
Transitional provisions
Article 70
Entry into force
It shall apply from 29 January 2019, except for Articles 63 and 64 which shall apply from 29 April 2018, and Articles 65, 66 and 67, which shall apply from 29 July 2016. For those Member States which participate in enhanced cooperation by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) TFEU, this Regulation shall apply as from the date indicated in the decision concerned.
This Regulation shall be binding in its entirety and directly applicable in the participating Member States in accordance with the Treaties.
( 1 ) Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324, 10.12.2007, p. 79).