Brussels, 28/01/2008 (Agence Europe) - In the face of strong opposition from Sweden, the European Justice Ministers failed to reach a compromise on the legislative bill aiming to define rules on the competent jurisdiction in the case of divorce of a couple where both partners come from different countries of the EU. Every year, around 170,000 international marriages in the EU end in divorce. The marriage partner who is the first to bring proceedings may currently choose which law will apply to this divorce. As there is no rule common to the Member States on the applicable law, the result is a kind of “forum shopping”, in other words a “race to the judge” between spouses, who each seek out the most favourable law for their divorce. There are major differences between the legislations of the Member States in the matter of divorce. For example, Malta does not recognise the right to divorce and in certain countries, such as Poland and Ireland, divorce is surrounded by a good deal of red tape. Other countries, however, such as the Scandinavian countries, have a more liberal regime, allowing marriage between persons of the same sex, for instance. The Slovenian Justice Minister, Lovro Sturm, reiterated the importance of seeking a solution to these differences between Europeans: “cross-border divorces represent 20% of all divorces within the EU”, he said. The proposed 2006 regulation on the applicable law and competence in divorce matters (named “Rome III”) aims to revise the current “Brussels II” regulation of 2003 and to allow couples a limited possibility of choosing the applicable law and competent court (EUROPE 9234). Ireland and the United Kingdom chose not to exercise their opt-in on this proposal. A solution had previously been found to answer concerns expressed by Malta (which did not want its courts to have to apply a foreign law) and by Belgium (which insisted that homosexual spouses had the same options). Both of these States will be granted the concept of “forum necessitates”, which allows spouses to bring the matter before the jurisdiction of their own nationality or of the Member State in which the marriage was contracted. As for Sweden, it is opposed to any changes to its divorce laws. “It is basically Sweden which is opposed to the Rome III regulation”, said the Commissioner with responsibility for Justice, Franco Frattini, speaking at the informal meeting of justice ministers held in Brdo pri Kranju, Slovenia, on 26 January. “In Sweden, we always apply the Swedish law on divorce”, the Swedish Justice Minister, Beatrice Ask, told a group of journalists. “The right to divorce is of fundamental importance for gender equality”, she added, refusing to agree to any relaxation of the country's national laws, explaining that these offer far greater protection than those of other States. Mr Frattini rejected such claims, stating that it appeared to him “a little strange” to believe that another Member State of the EU would offer less protection than Sweden. Even if this was the case, he added, the proposal provides for a clause which will allow a State to invoke the public order clause in order not to have to apply the regulation, for example in the case of homosexual divorce. “We must certainly carry out a harmonisation, in order to have legal certainty. It is an impossible situation if either of the spouses can decide who will be the competent judge and which law will be applied”, he added. In the face of Stockholm's opposition, the Commissioner was forced to admit that it is still too early to speak of a definitive compromise solution. Similarly, he concluded, it would be “counter-productive” to present a proposal for reinforced cooperation. Behind the scenes, however, certain diplomats are stating that various options exist to allow Sweden to get behind the proposal and agree to it, which all the other delegations feel is vital. The Slovenian Presidency has set itself until the June Council of Ministers to reach an agreement.
The ministers also examined a draft regulation from 2005 aiming to facilitate the cross-border collection of maintenance payments within the EU (EUROPE 9090). It is indeed much harder to enforce demands for the payment of maintenance overseas than in the country in which the decision concerning the maintenance payment was returned. Against this backdrop, the ministers agreed on the need to ratify The Hague Convention and the protocol on maintenance payments, which were both adopted in November 2007 and which will facilitate the collection of maintenance payments at international level, as quickly as possible. They also reaffirmed their support to remove the exequatur on justice decisions returned in this area in order to protect people, not only children, but also the other members of the family considered as most vulnerable. Mr Sturm stressed, however, that obstacles regarding this instrument must also be lifted. Even though the German Presidency succeeded in making great progress on the proposal (EUROPE 9411), several questions still remain outstanding, such as that regarding the scope of application, which has still not been resolved, and that of legal guarantees associated with the exequatur. The Slovenian Presidency hopes to be able to reach agreement on the text before the end of its term of office. (B.C.)