News and a Query (Recovery of Child Support, Recital 26 – Matrimonial Property Regimes)
Just a word to recall that Council’s Decision of 31 March 2011, on the signing, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, has been published in the OJ of April, 7th.
And, a query: does anybody know what the exact meaning of Recital 26 of the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes is?
Recital 26: “Since there are States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States”
I’m not sure what recital 26 of the proposal on matrimonial property regimes is exactly about, but its wording is not new: an almost identical statement appears in recital 27 of the Rome III regulation on the law applicable to divorce and legal separation. The drafting of both recitals is unclear, but my feeling is that they just refer to the fact that an express solution should be provided in order to cope with the case where the law applicable to a given relationship is the law of a State with two or more legal systems: an issue which is actually dealt with by Articles 14 and 15 of the Rome III regulation, as well as by Article 25 of the proposal on matrimonial property regimes. Plausibly, the two recitals also purport to cover a different question, related to the latter: the question whether Member States are bound to resort to the rules laid down in the two regulations in respect of “domestic” conflicts, too (i.e. conflicts involving only the different units by which a Member State’s legal system is composed, once those conflicts are considered from the point of view of that Member State). It is probably worth noting in this respect that Rome I, Rome II and Rome III clarify that “A Member State where different territorial units have their own rules of law […] shall not be required to apply this Regulation to conflicts solely between the laws of such units” (see Article 22(2) of Rome I, Article 25(2) of Rome II and – with a slightly different wording – Article 16 of Rome III), while the proposal on matrimonial property regimes, if I am not wrong, lacks a provision to that effect. The Commission has probably simply forgotten to introduce it. It remains that, at least in my view, provisions like these are not strictly necessary, as they simply “declare” a principle of EU law, i.e. that EU law only comes into play in respect of situations featuring a cross-border element, not in respect of purely internal situations (I shortly dealt with this issue in a commentary of Article 22 of the Rome I regulation, part of a larger work authored by different Italian scholars, appeared in “Le nuove leggi civili commentate”, 2009, p. 922 et seq.).
I agree with Pietro. As regards the wording adopted by the Rome III reg. in Articles 14, 15 and 16, it is worth noting that the initial Rome III Commission’s proposal (COM(2010) 105) contained a single provision (Art. 8 ) identical to the corresponding articles of Rome I and Rome II (articles 22 and 25, respectively).
In the final version of Rome III this single article has been “splitted” in three separate provisions, following the suggestion expressed by the European Parliament in its opinion: the amendments were proposed by EP Rapporteur Zwiefka (who added the reference to interpersonal conflicts: see amendments no. 34, 35 and 36 of the Draft Report, and amendments no. 46, 47 and 48 of the EP legislative resolution of 15 december 2010).
In the Proposal on matrimonial property regimes (and in the one on registered partnerships: see recital 22 and Art. 20), only the provision on “territorial” conflicts has been retained by the Commission, “forgetting” the remaining parts of Rome III on personal and domestic conflicts.
Ok, thanks. I have read exactly the other way round: a provision whereby the EU intended also to regulate internal conflicts. It remains that the formula suggests a community provision to govern the extent to which this Regulation applies in the different territorial units of those States… though the EU lacks competence to do so.
The UK does not apply EU Regulations to matters between different law districts of the UK: England & Wales, Scotland and Northern Ireland. It does apply Hague Conventions to such matters, presumably on the basis that the UK courts retain jurisdiction as opposed to the ECJ having ultimate jurisdiction in EU Regulation cases.