Brussels, 23/03/2009 (Agence Europe) - “Rome III” is not dead. European Commissioner for Justice Jacques Barrot intends to present a new proposal on transnational divorce (Rome III) very soon without, however, resorting to the launching of enhanced cooperation. “I have not buried our so-called Rome III proposal on the law applying to transnational divorce”, Barrot said on Friday 20 March speaking at a colloquy organised with the Council of the Notariats of the European Union (CNUE) on legal cooperation to the service of European families. Each year in the Union, 170,000 transnational divorces are registered, i.e. about 20% of all divorces pronounced.
In June 2008, the EU Council again came up against a Swedish veto when seeking to reach a unanimous agreement on the draft Rome III regulation (EUROPE 9677). After this failure, ten member states - France, Romania, Bulgaria, Hungary, Austria, Spain, Italy, Slovenia, Luxembourg and Greece - sent a formal request to the Commission to make a proposal for enhanced cooperation (EUROPE 9820 and 9825). However, given the reticence of several other member states, the Commission visibly chose to take a track other than enhanced cooperation rather than risk fragmentation within the European area. “The Commission is before an impossible choice as, either it proposes enhanced cooperation that establishes a de facto precedent, or it refuses to go along these lines and gives a premium to the member states that support the veto”, a European source said. “Why say yes to enhanced cooperation when there is still a chance of finding a real solution?”, the same source said, adding: “States have not understood that unanimity is consensus. The Commission considers that, if everyone showed good faith on this dossier, there could be consensus”.
The Commission is therefore expected to suggest that member states resume the text of the compromise put forward by the French Presidency in April 2008. The text stipulates that, in case of disagreement between the parties on the law applicable to divorce, it is the law of the last habitual place of residence of the spouses that applies. In the event of agreement, the parties could choose the law which is applicable to them depending on restrictive criteria. Some countries would agree to apply a foreign law in their courts. A new article would be introduced allowing member states to accept this compromise by way of a voluntary declaration. The countries that do not subscribe to the declaration could benefit from a softer “lex fori” system that would thus allow them to continue applying their national law. The new text would also comprise a revision clause giving the Commission the possibility to issue a report after five years in which it could envisage modifying the regulation depending on the possible developments of European Court of Justice jurisprudence. If this new project were accepted, some 20 member states could apply the text as proposed. Denmark does not take part in Community action in this field and the United Kingdom and Ireland have an opt-out. Sweden, the Netherlands, the Czech Republic and Finland are not expected to make a declaration, therefore benefitting from the softer “lex fori”. Commissioner Barrot is expected to soon give his go-ahead for a communication addressed to member states to introduce an amended draft regulation. (B.C./transl.jl)