Parltrack

PURPOSE : to amend Regulation 2201/2003/EC as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters

PROPOSED ACT : Council Regulation.

CONTEXT : the European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market. There are currently no Community rules in the field of applicable law in matrimonial matters. Council Regulation 2201/2003/EC sets out rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, but does not include rules on applicable law. The European Council held in Vienna on 11 and 12 December 1998 invited the Commission to consider the possibility of drawing up a legal instrument on the law applicable to divorce. In November 2004, the European Council invited the Commission to present a Green Paper on conflict-of-law rules in divorce matters. In line with its political mandate, the Commission presented a Green Paper on applicable law and jurisdiction in divorce matters on 14 March 2005. The Green Paper launched a wide public consultation on possible solutions to the problems that may arise under the current situation.

CONTENT : the overall objective of this Proposal is to provide a clear and comprehensive legal framework in matrimonial matters in the European Union and ensure adequate solutions to the citizens in terms of legal certainty, predictability, flexibility and access to court. The current situation may give rise to a number of problems in matrimonial proceedings of an international nature. The fact that national laws are very different both with regard to the substantive law and the conflict-of-law rules leads to legal uncertainty. The great differences between and complexity of the national conflict-of-law rules make it very difficult for international couples to predict which law will apply to their matrimonial proceeding. The large majority of Member States do not provide any possibility for the spouses to choose applicable law in matrimonial proceedings. This may lead to the application of a law with which the spouses are only tenuously connected and to a result that does not correspond to the legitimate expectations of the citizens. In addition, the current rules may induce a spouse to "rush to court", i.e. to seise a court before the other spouse has done so to ensure that the proceeding is governed by a particular law in order to safeguard his or her interests.

Finally, the current rules do not guarantee sufficient access to court. The Proposal amends Council Regulation 2201/2003/EC as regards jurisdiction and applicable law in matrimonial matters to attain the following objectives:

• Strengthening legal certainty and predictability : the Proposal introduces harmonised conflict-of-law rules in matters of divorce and legal separation to enable spouses to easily predict which law that will apply to their matrimonial proceeding. The proposed rule is based in the first place on the choice of the spouses. The choice is confined to laws with which the marriage has a close connection to avoid the application of "exotic" laws with which the spouses have little or no connection. In the absence of choice, the applicable law is determined on the basis of a scale of connecting factors which will ensure that the matrimonial proceeding is governed by a legal order with which the marriage has a close connection. This will greatly enhance legal certainty and predictability for the spouses concerned as well as for practitioners.

• Increasing flexibility by introducing limited party autonomy : there is currently very limited place for party autonomy in matrimonial matters. The national conflict-of-law rules foresee in principle only one solution in a given situation, e.g. the application of the law of the common nationality of the spouses or the application of the law of the forum. The proposal renders the legal framework more flexible by introducing a limited possibility for the spouses to choose (a) applicable law and (b) the competent court in proceedings concerning divorce and legal separation. To allow spouses to come to an agreement on these matters could be particularly useful in cases of divorce by mutual consent. Special safeguards are introduced to ensure that the spouses are aware of the consequences of their choice.

• Ensuring access to court : the proposal seeks also to improve access to court in matrimonial  proceedings. The possibility to choose the competent court in proceedings relating to divorce and legal separation ("prorogation") will enhance access to court for spouses who are of different nationalities. The rule on prorogation applies regardless of whether the couple lives in a Member State or in a third State. In addition, the proposal specifically addresses the need to ensure access to court for spouses of different nationalities who live in a third State. The proposal introduces a uniform and exhaustive rule on residual jurisdiction in order to enhance legal certainty and ensure access to court in matrimonial matters for spouses who live in a third State but would like to bring proceedings in a Member State with which they have a close connection.

• Preventing "rush to court" by one spouse : finally, the Proposal addresses the problem of "rush to court" by one spouse, i.e. where one spouse applies for divorce before the other spouse has done so to ensure that the proceeding is governed by a law to safeguard his or her own interests. This may lead to the application of a law with which the defendant does not feel closely connected or which fails to take into account his or her interests. It further renders reconciliation efforts difficult and leaves little time for mediation. The introduction of harmonised conflict-of-law rules are likely to greatly reduce the risk of "rush to court", since any court seized within the Community would apply the law designated on the basis of common rules.

PURPOSE : to amend Regulation 2201/2003/EC as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters

PROPOSED ACT : Council Regulation.

CONTEXT : the European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market. There are currently no Community rules in the field of applicable law in matrimonial matters. Council Regulation 2201/2003/EC sets out rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, but does not include rules on applicable law. The European Council held in Vienna on 11 and 12 December 1998 invited the Commission to consider the possibility of drawing up a legal instrument on the law applicable to divorce. In November 2004, the European Council invited the Commission to present a Green Paper on conflict-of-law rules in divorce matters. In line with its political mandate, the Commission presented a Green Paper on applicable law and jurisdiction in divorce matters on 14 March 2005. The Green Paper launched a wide public consultation on possible solutions to the problems that may arise under the current situation.

CONTENT : the overall objective of this Proposal is to provide a clear and comprehensive legal framework in matrimonial matters in the European Union and ensure adequate solutions to the citizens in terms of legal certainty, predictability, flexibility and access to court. The current situation may give rise to a number of problems in matrimonial proceedings of an international nature. The fact that national laws are very different both with regard to the substantive law and the conflict-of-law rules leads to legal uncertainty. The great differences between and complexity of the national conflict-of-law rules make it very difficult for international couples to predict which law will apply to their matrimonial proceeding. The large majority of Member States do not provide any possibility for the spouses to choose applicable law in matrimonial proceedings. This may lead to the application of a law with which the spouses are only tenuously connected and to a result that does not correspond to the legitimate expectations of the citizens. In addition, the current rules may induce a spouse to "rush to court", i.e. to seise a court before the other spouse has done so to ensure that the proceeding is governed by a particular law in order to safeguard his or her interests.

Finally, the current rules do not guarantee sufficient access to court. The Proposal amends Council Regulation 2201/2003/EC as regards jurisdiction and applicable law in matrimonial matters to attain the following objectives:

• Strengthening legal certainty and predictability : the Proposal introduces harmonised conflict-of-law rules in matters of divorce and legal separation to enable spouses to easily predict which law that will apply to their matrimonial proceeding. The proposed rule is based in the first place on the choice of the spouses. The choice is confined to laws with which the marriage has a close connection to avoid the application of "exotic" laws with which the spouses have little or no connection. In the absence of choice, the applicable law is determined on the basis of a scale of connecting factors which will ensure that the matrimonial proceeding is governed by a legal order with which the marriage has a close connection. This will greatly enhance legal certainty and predictability for the spouses concerned as well as for practitioners.

• Increasing flexibility by introducing limited party autonomy : there is currently very limited place for party autonomy in matrimonial matters. The national conflict-of-law rules foresee in principle only one solution in a given situation, e.g. the application of the law of the common nationality of the spouses or the application of the law of the forum. The proposal renders the legal framework more flexible by introducing a limited possibility for the spouses to choose (a) applicable law and (b) the competent court in proceedings concerning divorce and legal separation. To allow spouses to come to an agreement on these matters could be particularly useful in cases of divorce by mutual consent. Special safeguards are introduced to ensure that the spouses are aware of the consequences of their choice.

• Ensuring access to court : the proposal seeks also to improve access to court in matrimonial  proceedings. The possibility to choose the competent court in proceedings relating to divorce and legal separation ("prorogation") will enhance access to court for spouses who are of different nationalities. The rule on prorogation applies regardless of whether the couple lives in a Member State or in a third State. In addition, the proposal specifically addresses the need to ensure access to court for spouses of different nationalities who live in a third State. The proposal introduces a uniform and exhaustive rule on residual jurisdiction in order to enhance legal certainty and ensure access to court in matrimonial matters for spouses who live in a third State but would like to bring proceedings in a Member State with which they have a close connection.

• Preventing "rush to court" by one spouse : finally, the Proposal addresses the problem of "rush to court" by one spouse, i.e. where one spouse applies for divorce before the other spouse has done so to ensure that the proceeding is governed by a law to safeguard his or her own interests. This may lead to the application of a law with which the defendant does not feel closely connected or which fails to take into account his or her interests. It further renders reconciliation efforts difficult and leaves little time for mediation. The introduction of harmonised conflict-of-law rules are likely to greatly reduce the risk of "rush to court", since any court seized within the Community would apply the law designated on the basis of common rules.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Evelyne GEBHARDT (PES, DE) and made several amendments to the proposal for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The main amendments - made in the framework of the consultation procedure - are as follows:

Definition of the term "habitual residence": a definition of the term has been provided to mean a person's place of ordinary abode. This definition is deemed necessary so as to avoid as much as possible arbitrary interpretations. The term should be interpreted in accordance with the purposes of this Regulation. Its meaning should be determined by the judge in each individual case and on the basis of facts. The term does not refer to a concept of national law but, rather, to a separate concept established in Community law.

Choice of jurisdiction: the proposal introduces the possibility for spouses to designate by common agreement the competent jurisdiction in their divorce procedure. MEPs propose to introduce a new article which stipulates that when the competent jurisdiction under this Regulation is situated in a Member State whose law makes no provision for divorce or does not recognise the existence or validity of the marriage in question, jurisdiction shall be allocated: i) to the Member State of the nationality of one of the spouses; or ii) to the Member State in which the marriage was celebrated.

According to MEPs, the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

Choice of applicable law: the proposal introduces the possibility for the spouses to designate by common agreement the law applicable in their divorce procedure. MEPs also deem it necessary to allow the possibility of choosing the law of the State in which the spouses have their habitual residence at the time when the agreement is concluded, and also the law of the State in which the marriage took place. Should the law indicated pursuant to the Regulation not recognise separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.

This amendment is intended to deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State. Another amendment clarifies situations in which the law of a Member State or the marriage contract stipulates stricter requirements than those laid down in the Regulation.

MEPs stress that the possibility of choosing the law applicable to divorce and to legal separation should not harm the interests of the child.

Enlightened choice: MEPs recall that the possibility of choosing by common agreement the jurisdiction and the applicable law should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the Member States should be aware of the importance of an enlightened choice on the part of the two spouses concerning the legal implications of the agreement concluded.

In this context, MEPs propose that 3 months after the date upon which this Regulation comes into force at the latest, the Member States shall notify the Commission of their national rules concerning the formal requirements applying to agreements relating to the choice of competent jurisdiction and of the law applicable to marriage contracts. The Member States shall notify the Commission of any subsequent change to those rules.  MEPs also suggest that the Commission shall make available to the public the information which has been notified to it by means of appropriate measures, in particular the European Judicial Network in civil and commercial matters.