With the publication in the OJEU L of 8 July 2016 of Regulations (EU) 2016/1103 and2016/1104 of the Council, both of 24 June 2016, the EU has completed the drive for the new regulation of the property regimes of couples made up of citizens of different nationalities of the Union, both married and unmarried.
This process began last March, when the European Commission approved a proposal for an enhanced cooperation agreement among 17 of the Member States, to clarify the rules applicable to the property regimes of married couples and registered international de facto couples.
Specifically, the purpose of this initiative was i) To clarify which national court has jurisdiction to help the couples concerned manage or divide their property in the event of divorce, separation or death (rules on jurisdiction); ii) To clarify which law applies when the laws of several countries could apply to the matter (rules on applicable law); and iii) To facilitate the recognition and enforcement in one Member State of a decision on property matters given in another Member State.
This proposal materialised in an agreement reached last June, which has been embodied in these two new regulations.
Having discussed the main aspects of Regulation 2016/1103, we now review the main points of Regulation 2016/1104, which establishes enhanced cooperation in the area of jurisdiction, applicable law, recognition and enforcement of decisions in matters of the property consequences of registered partnerships.
Territorial scope of the rule
This Regulation only affects the States that agreed on the enhanced cooperation mechanism on this matter, authorised by EU Decision 2016/954, which are, in addition toSpain, Sweden, Belgium, Bulgaria, Greece, Croatia, Cyprus, Slovenia, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, and Finland.
The rest of the Union’s countries may join the rules at any time once it is formally adopted. Estonia, for example, has already announced its intention to do so after its adoption.
Material scope of application
This Regulation will apply to the property consequences of registered partnerships, “property consequences” being understood as the “set of rules concerning the property relationships of the members of the registered partnership with each other and with third parties, as a result of the legal relationship created by the registration of the partnership or its dissolution” and “registered partnerships” as the “regime of life in common of two persons regulated by law, the registration of which is mandatory under that law and which complies with the legal formalities required by that law for its creation.”
This concept of “registered partnership” is defined solely for the purposes of this Regulation, as its actual content must continue to be governed by the national law of the Member States.
Therefore, no provision of this Regulation should oblige Member States whose legal system does not provide for the institution of registered partnership to establish that institution in their national law.
But, at the same time, the “scope of this Regulation should include all civil-law aspects of the property consequences of registered partnerships, relating both to the day-to-day management of the property of the members of the registered partnership and to its liquidation, in particular as a result of the couple’s separation or the death of one of its members.”
Therefore, the Regulation “should not apply to areas of civil law other than the property consequences of registered partnerships.
The Regulation excludes tax, customs and administrative matters and certain issues such as the legal capacity of the members of the registered partnership; its existence, validity and recognition; maintenance obligations; succession upon the death of one of the members of the registered partnership or social security, among others.
Rules on jurisdiction
The Chapter II establishes a hierarchy of connecting factors to determine jurisdiction. It begins with the habitual residence of the members of the registered partnership at the time the court is seised, the last connecting factor being the Member State under whose law the mandatory registration of the partnership was carried out for its creation. And bearing in mind that the institution of registered partnership is not provided for in all Member States, the courts of a Member State whose law does not provide for the institution of registered partnership may, exceptionally, find themselves obliged to decline jurisdiction under this Regulation, in which case the person concerned must be able to bring their case in any other Member State that has a connecting factor conferring jurisdiction, regardless of the order of the grounds of jurisdiction, while respecting the autonomy of the parties.
It is permitted that, in certain circumstances, the parties may conclude a choice-of-court agreement in favour of the courts of the Member State of the applicable law or of the courts of the Member State under whose law the registered partnership was created, and may also settle the matter amicably and out of court, for example before a notary, in the Member State of their choice, where this is possible under the law of that Member State.
The grounds on which subsidiary jurisdiction may be exercised are listed exhaustively, and a forum necessitatis is provided for to allow a court of a Member State to rule, exceptionally, on the property consequences of a registered partnership that has a close connection with a third State.
In addition, lis pendens is regulated to avoid irreconcilable decisions being given in different Member States. And so that the members of a registered partnership know in advance which law will be applicable to its property consequences, harmonised conflict-of-law rules are established in order to avoid contradictory results.
The term court includes not only courts in the strict sense of the word, exercising judicial functions, but also, for example,notaries in some Member States who, in certain matters of the property regime of registered partnerships, exercise judicial functions in the same way as courts, as well as notaries and legal professionals who, in some Member States, exercise judicial functions in matters of the property consequences of registered partnerships by delegation of powers from a court. Notaries who do not exercise judicial functions are not included. Those who do are bound by the rules on jurisdiction laid down.
The different related proceedings of citizens should be allowed to be heard before the courts of the same Member State, with jurisdiction over the property consequences of registered partnerships being concentrated in those Member States before whose courts the succession of a member of the registered partnership must be dealt with, in accordance with Regulation (EU) No 650/2012, or the dissolution or annulment of the registered partnership. Thus, where proceedings concerning the succession of a member of the registered partnership are pending before the court of a Member State seised under Regulation (EU) No 650/2012, the courts of that State should have jurisdiction to rule on the property consequences of the registered partnership arising in connection with that succession.
And the property consequences of registered partnerships arising in connection with proceedings pending before the court of a Member State before which an application for dissolution or annulment of a registered partnership is brought should be decided by the courts of that Member State, where the members of the registered partnership so agree.
Matters relating to the application of overriding mandatory provisions, public policy and territorial and interpersonal conflicts of laws are provided for.
Applicable law
The Chapter III provides that the law determined under the Regulation will apply even if it is not the law of a Member State.
The members of a registered partnership are authorised to choose the law applicable to its property consequences, regardless of the nature or location of their assets, from among the laws with which they have a close connection by reason of their habitual residence or nationality. That choice must be limited to a law that attributes property consequences to registered partnerships and may be made at any time. The law applicable to the property consequences of the registered partnership cannot be changed without the express declaration of the will of the parties. The validity requirements to be met by the choice agreement are laid down. The rules on the validity of the registered partnership’s agreements (capitulaciones) are also set out in detail.
Where no law has been chosen, it is provided that the law of the State under which the mandatory registration of the partnership was carried out for its creation will apply to the property consequences of the registered partnership. Once the law has been determined, it will apply to the property consequences of the registered partnership from the classification of the assets of one or both members into different categories during the registered partnership and after its dissolution until the liquidation of the property.
Recognition, enforceability and enforcement of decisions
The Chapter IV governs the recognition, enforceability and enforcement of decisions given in the Member States in matters of the property consequences of registered partnerships and the acceptance and enforceability of authentic instruments on the property consequences of registered partnerships and of court settlements.
The recognition and enforcement of decisions on the property consequences of registered partnerships under this Regulation should in no way imply recognition of the registered partnership that gave rise to the decision.
Entry into force and applicability
The rule enters into force on 28 July 2016, twenty days after its publication in the Official Journal of the European Union.
It will apply from 29 January 2019, with the exception of Articles 63 and 64, which will apply from 29 April 2018, and of Articles 65, 66 and 67, which will apply from 29 July 2016.
For the Member States participating in enhanced cooperation by virtue of a decision adopted in accordance with Article 331(1), second or third subparagraph, of the TFEU, this Regulation will apply from the date indicated in the decision in question.
This Regulation will apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019, subject to paragraphs 2 and 3.
Where the action was brought in the Member State of origin before 29 January 2019, decisions given after that date will be recognised and enforced in accordance with Chapter IV, provided that the rules of jurisdiction applied comply with those provided for in Chapter II.
The provisions of Chapter III will apply only to members of a partnership who have registered it or who have specified the law applicable to the property consequences of their registered partnership after 29 January 2019.