Applicable law in matrimonial matters - Amendment of regulation as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (debate) 
President
The next item is the joint debate on:
the report by Mrs Gebhardt, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, on the proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters - C6-0305/2006 - and
the oral question by Mrs Gebhardt and Mr Deprez, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, to the Commission, on the Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters - B6-0477/2008).
Evelyne Gebhardt
Madam President, ladies and gentlemen, today, we are discussing an issue that is of the utmost importance to citizens. Our Europe is a pleasant place where people enjoy increasing mobility. It is a place where, increasingly, marriages are taking place between nationals of different countries or couples are moving to a different country, and of course this is a good thing and is one of the accomplishments of the European Union. Unfortunately, there is also a drawback to this accomplishment, however, which is that these marriages often end in separation, and then there is the issue of the necessary divorce.
Current law is so unsatisfactory in some respects that a couple may be unable to find a competent judge or law for their divorce. Naturally, this is a very unpleasant situation for these citizens, and we must come up with a solution and an answer. This concerns people's lives, which are of the utmost importance.
I am pleased that the European Commission has tackled the subject, therefore, and I should like to reiterate straight away that there is to be no harmonisation of the law in this matter - indeed this is not permitted, and it is stated quite clearly in the Treaty on European Union and the Treaty establishing the European Community that the law in such matters is the domain of Member States.
Yet we must ensure that there is transparency and that citizens are able to use this law. After all, the legislation is very diverse. There is Malta on the one hand, with no divorce at all, and Sweden on the other, where it is possible to obtain one within six months. There is the Netherlands, where homosexual marriage is permitted, and Poland, where such a thing would be inconceivable. These are all questions that arise and need to be answered.
We have done good work in the European Parliament and enjoyed constructive cooperation on this with the European Commission and also the Council. The Council is key - it has to decide unanimously what will be done in this field in future. Unfortunately, it is there that the problem now lies, but I shall return to this later. The response that the European Commission has suggested to us is very positive. Firstly, it would like to increase the choice of law under which a couple can divorce, provided both parties are in agreement - although it goes without saying that, if this is to be truly applicable, there must be a connection to the life, place of residence or place of marriage of the couple or to other aspects.
The question also arises as to what happens if a couple or just one of the partners wants a divorce and the couple cannot agree on the law to be applied. In these circumstances, we take the view that there cannot be such great freedom of choice, as we need to ensure that there is a catalogue. We cannot accept 'forum shopping'. We cannot accept a situation in which the stronger partner chooses the law most favourable to him- or herself and the other is disadvantaged. That is unacceptable. This is why we have two different responses in these matters.
One particularly important principle quite clearly applies in both cases: we must ensure that both partners are very well informed about the consequences - both social and legal - of the choice of law. Examples are custody matters, alimony and all such issues that are connected in this case too. The parties concerned must be aware of this before they take a decision. We are asking that judges verify that the partners are really aware of the consequences of their choice.
It is also important that we prevent the application of law from somewhere or other that is unacceptable in accordance with the principles of the European Union - for example Sharia law, Chinese law or whatever. In this regard, too, we have come up with clear wording - particularly in Amendments 25 and 30, which I have attempted to reinforce with my Amendment 36 - namely stating that the respective law must be in keeping with the basic principles of the European Union or it cannot be applied. This goes without saying as far as we are concerned.
The Group of the European People's Party (Christian Democrats) and European Democrats has tabled a number of amendments that I find absolutely impossible to accept. These impose a total limit on what we already have, and in addition would violate existing international law, for example that of the Hague Convention. We cannot accept this. We need further dialogue, and I hope that we do manage to find a solution to the problem by tomorrow. At all events, I am much obliged to Mr Demetriou for his cooperation with me; it has been very constructive.
The Council has a major problem: it has to take a unanimous decision, and there is currently one Member State that is quite simply standing in the way of this unanimity. That is why our committee tabled this oral question to the Council and the European Commission. I consider it very regrettable that the Council is not present at this time to reply to this question. The Minister has just left. It is essential that we know what to do now, for our own sake and that of citizens and the future of the European Union.
The first question to the European Commission - I am pleased that you are here to reply, Mr Barrot - is as follows: do you intend to withdraw your proposal? The second is: do you intend to submit a proposal to the Council to establish an enhanced cooperation procedure according to Article 11 of the EC Treaty and in compliance with Articles 43 and 45 of the Treaty? I should have liked the Council to tell me whether it really intends to take this course, as that is the big question that arises.
Jacques Barrot
Madam President, honourable Members, I will start by trying to respond to Mrs Gebhardt's report, and will then turn to the oral question that you have very opportunely linked to the report. I am glad to see that Mr Deprez is also here.
Many, many thanks, Mrs Gebhardt, for your report, which is quite remarkable, not least for your excellent degree of cooperation with the Commission on such a delicate and sensitive subject.
The Rome III proposal is, indeed, very close to our hearts, and not only for the Commission - I know that it is also of great interest to the European Parliament. I believe that it will be very important in supporting the free movement of people within the European Union.
I should just like, Madam President, to go over some of the data we have available: there are currently 2 200 000 weddings each year in the European Union, 350 000 of which are international marriages. That is already a considerable number and, clearly, it is a phenomenon that will increase. Around 170 000 divorces a year are affected by this proposal, which is around 19% of the total of some 875 000 divorces a year within the European Union. 20% - that is a significant figure!
That is why the Commission broadly shares your view, Mrs Gebhardt, regarding the importance of the Rome III proposal: it provides greater predictability and legal certainty for the couples concerned. As you pointed out, in the absence of a framework, either couples go 'forum shopping' or the dominant partner has the final say.
The Commission therefore broadly supports the European Parliament's report on the initial Rome III proposal, with certain reservations. The Commission supports Parliament's amendments aiming to ensure that spouses can make an enlightened choice. The Commission therefore agrees with Parliament on the need to tighten up the formal conditions for the conclusion of marriage contracts and to protect the weaker spouse, but we also need to take account of the differences in the legal systems of the Member States in this regard: as you have quite rightly emphasised, this is not a matter for harmonisation.
In a similar vein, the Commission welcomes Parliament's proposals aiming to improve the public's awareness of national and European laws concerning marriage and divorce contracts. There is one point on which we disagree: the Commission sees no need to include a new competence criterion based on the place where the marriage was celebrated, as the link between the place where the wedding takes place and the couple's situation when they separate may be very tenuous.
Nevertheless, the Commission endorses Parliament's amendment concerning the spouses' option of going to this court as a last resort, if it proves impossible to obtain a divorce from the court of habitual residence, but we see this more as an exceptional case.
The Commission would also prefer to leave it up to the Court of Justice to interpret the term 'habitual residence'. This term already appears in a number of instruments and has not, to date, been formally defined, but national judges do not seem to have had too many problems in applying it. We feel that, for the sake of respecting the diversity of the Member States' legal systems, we can put our trust in the Court of Justice.
We also do not consider it necessary to restrict Rome III solely to the law of the Member States. This is an important issue, because the Member States will want to continue to apply the divorce laws of third countries that share our democratic values: for example, if a German or French woman marries a Swiss man, it seems reasonable that it should also be possible to apply the rules we have set for ourselves to this marriage, or to this divorce.
Bear in mind, though, that the Commission agrees with Parliament on the need for Rome III to include an antidiscrimination clause, of course, which would allow any European judge to exclude foreign laws that are incompatible with the principle of equality between spouses. No doubt this antidiscrimination clause will still allow us to apply it, for example, to Switzerland/Member State or Norway/Member State marriages.
I will now turn to the question of how we can make Rome III a success, and I should once again like to thank Mrs Gebhardt and Mr Deprez for their oral question, pulling me up on the progress of Rome III. Obviously, I am with you in regretting the deadlock in the Council regarding the negotiations on Rome III. Last July, we had a debate between the justice ministers on the possibility of enhanced cooperation on Rome III and, at the end of July, nine Member States presented the Commission with a request for enhanced cooperation: that is more than a third of the Member States involved in the adoption of Rome III. It is therefore clear that the Commission needs to look into this request for enhanced cooperation, but, as you will understand, if we want this to be a success we will need to pay attention to the whole context.
I should now like to respond to three questions that you have asked the Commission. First of all, I can tell you that there are no plans to withdraw the Commission's initial 'Rome III' proposal. If the Commission agrees to present the Council with a proposal on enhanced cooperation within the sphere of 'Rome III', however, it may, in the interests of legal clarity, withdraw its initial proposal once the decision has been taken, in order to amend it, but that would only be if we really had the possibility of launching enhanced cooperation. In any event, withdrawal is not on the agenda.
I should like to take this opportunity to briefly recap the procedure followed by the enhanced cooperation mechanism. A request must first be submitted to the Commission by at least eight Member States, as occurred in this case. If the request meets the other criteria set out in the Treaty on European Union - if it complies with the rules on the single market - the Commission may submit the request to the Council. If it chooses not to do so, it must provide reasons for this. Enhanced cooperation must then be authorised by the Council, following consultation with or assent from Parliament, depending on the situation.
The request for enhanced cooperation does, of course, raise certain questions, in both legal and political respects. We need to face up to the need to continue with our joint action with regard to family law, as close as possible to the citizens, and to balance this need against the risk of fragmentation of the European area of justice that could result from a series of enhanced cooperation agreements. Before I make a statement, I should of course like to hear the views of the Members of Parliament, and I certainly want the Member States to clarify their position.
At any rate, I should like to assure the European Parliament that it is my intention - and not just my intention but also my desire - to move forwards with judicial cooperation on civil matters in Europe. Family law must not be the poor relation of civil law - that would be rather paradoxical given that the issues it covers are closest to people's daily lives. Fortunately, progress has been made with regard to the circulation of divorce decisions, parental responsibility and rights of access to children.
On that subject, I should also like to say that, now that we have the texts, I as Commissioner will need, with your help, to ensure that the rules are followed. I am thinking in particular of rights of access to children and custody, with regard to which the current situation in Europe is not entirely satisfactory.
In summary, we will indeed be able to come up with a legislative proposal on the applicable law on the subject. I would also add that we are simultaneously drafting a law applicable to matrimonial systems that could be adopted in early 2010.
That, Madam President, is where we stand with this issue. Of course, I cannot anticipate the result of the consultation we will very soon be conducting with the Member States. What I can say, though, is that the Commission wants to make real progress, whilst nevertheless once again ensuring that we can bring along the majority of Member States with us. That, in brief, is my point of view, but I hope, like you and like Parliament - though I will listen to you closely - that things will move forwards.
Carlo Casini
Madam President, Commissioner, ladies and gentlemen, the proposal for a regulation in question was examined in depth by the Committee on Legal Affairs, for which I have the honour of being the draftsman.
The suggestions put forward in the opinion approved unanimously by that committee met with only partial approval, however, within the Committee on Civil Liberties, Justice and Home Affairs. Nonetheless, I have to say that together we have tried to rationalise the Council's initial proposal as far as possible, adding elements of legal certainty.
The compromise amendments approved by the two committees with the help of Mrs Gebhardt, whom I would like to thank, have been welcomed and have bolstered the principles we referred to with the aim of getting this regulation off the ground. In this regard, the authorities of a state which makes no provision for divorce and which does not recognise the type of marriage in question will not be obliged to dissolve that marriage.
On one point, however, there remains a difference of opinion - that mentioned earlier by Mrs Gebhardt. The basic issue is this: the choice of law is entirely new in the legal world, since it is not normally possible to choose the law, only to choose a judge, making this a completely new concept. Given this choice of law, to which law do we want to refer? To the law of one of the 27 states of the European Union, or to the law of any country in the world? It is true that there is a limit. The limit is that already established by public policy and the non-applicability in a given state of any law providing for a type of marriage not considered to exist in that state.
I believe that if we really want legal certainty - my objection is a technical one - if we really want to introduce 'shopping around' with regard to the choice of applicable law, if we really want to abide by the weakest code of law - because let us not forget that to choose a law you need consensus and that consensus can also be subject to considerable pressure - if we really want to construct a European legal area then, in my opinion, it is a good thing for all of these amendments that the choice of law be limited to the laws of the 27 states of the European Union.
In this sense, though we have tabled several amendments, they are in essence one and the same, and since it is a technical amendment that does not alter our overall opinion of the proposal, we appeal to the common sense of all Members in order that this amendment be approved.
Panayiotis Demetriou
on behalf of the PPE-DE Group. - (EL) Madam President, first may I thank the rapporteur for the long period of cooperation leading up to the report tabled for debate before us today and remark that we held several meetings at which we discussed all the material.
Family law is a serious matter and the particular aspect which we are examining in connection with divorce, by which I mean jurisdiction and the choice of law, is and always has been one of the most serious aspects of family law.
May I point out that our policy is to support the institution of the family, not to encourage the dissolution of marriage. However, divorce is a social phenomenon nowadays and we must deal with it in reality. We do not wish to make it easier but, when a marriage reaches the point at which it cannot continue, we must be in a position to provide legitimate ways out, so that neither of the parties has to bear all the distress and punishment.
I do not believe that there is an easy way of choosing the applicable law in relation to divorce, but we could be clearer in terms of public policy and human rights in order to give the courts the powers of discretion to reject laws which are not in keeping with European customs, human rights and public policy.
As far as enhanced cooperation is concerned, I take the view that the Commission - and I congratulate you Commissioner on the position which you took today - should advance this matter even further so that we arrive, if possible, at the point at which enhanced cooperation is acceptable.
Inger Segelström
on behalf of the PSE Group. - (SV) Madam President, I want to begin by thanking Mrs Gebhardt for the constructive work she has done and to say how sorry I am that it was not possible to come to the same view as Sweden and myself. As a result, I was unable to vote in favour of the report either in committee or in plenary. For me as a Swedish Social Democrat, this proposal is a retrograde step in terms of equality between women and men. These issues should therefore be resolved at national level in the future too.
I think that it would have been enough if divorce were only to have been granted when the parties were in complete agreement. The proposal means that the weaker party, more often than not the woman, can now have solutions forced on her by the man, either because he acts first or uses coercion. The courts can thus be compelled to apply laws of which we are highly critical - laws that are abusive and that take an antiquated and old-fashioned view of women, marriage and divorce. For me, quick divorce settlements are less important than equality and women being able to feel secure. I shall therefore persist in my efforts and go on voting against this proposal until we find another solution.
Sophia in 't Veld
on behalf of the ALDE Group. - (NL) Madam President, before I address the matter in hand, I should like to propose that, in future, we ask each Council presidency to bring a wax doll or a blow-up doll to this Chamber, since the Council itself is always absent from debates of this kind and I do like to address somebody. You may be able to pass on this request formally to the presidency. I gather my fellow MEPs are in agreement with me.
First of all, I should like to congratulate and, also on behalf of my group, express my support for the rapporteur, who has done an excellent job over the past year. All credit to her.
Madam President, the EU is not, of course, concerned with conjugal ethics, but with guaranteeing the rights of EU citizens wherever they may be and whomever they decide to marry. Indeed, it is none of our business who they decide to marry, but what we have to do is to safeguard citizens' rights. In this light, it is extremely unfortunate that the Member States have failed to reach agreement.
I should like to say to my very esteemed Swedish fellow MEPs that I have the feeling that there is a huge misunderstanding. I believe human rights, those of women in particular, to be strengthened, not weakened, by this. Indeed, I welcome the fact that, in the 21st century, people can make individual decisions about their own lives - and divorce may be part and parcel of this.
Moreover, like the rapporteur, I should like to say that my group will also be voting against the amendments put forward by the Group of the European People's Party (Christian Democrats) and European Democrats, and I also disagree with Mr Casini's arguments.
It is also a question of principle, because I think we should decide for ourselves what we want for our citizens, and we should not let fear for the sharia get the better of us. There are sufficient guarantees built into the present proposal and in the additional amendment by the Socialist Group in the European Parliament, which we will be backing. This has been the subject of previous discussions.
Furthermore, I should like to say the following - and with this, I am reacting to the comments made by Mr Casini - that it is actually very harsh that the same arguments used to rule out certain systems of law - sharia for example - are also used, or referred to within the European Union, not to recognise totally legal marriages contracted within the EU, purely on account of the couple's sexual orientation. This is, to my mind, a complete anomaly.
I should like to repeat that I find it extremely unfortunate that the Member States have failed to reach agreement.
If I understand it correctly, the Commission is hanging onto a European solution for the time being. This fills me with great pleasure. I realise that it is an extremely difficult thing to do: if this problem, even despite Mr Sarkozy's enormous drive, has not been solved, it must be very difficult indeed.
Finally, I can only express the hope, should closer cooperation be achieved against all odds, that all 26 Member States that had reached agreement, including mine, would conform.
Kathalijne Maria Buitenweg
on behalf of the Verts/ALE Group. - (NL) Madam President, according to a study by the Commission that was published this week, long-distance commuters often suffer with headaches, sleep deprivation and poor relationships, and it follows that in all these international environments, including ours, there is probably a very high divorce rate. Anyhow, the figures which Commissioner Barrot quoted a moment ago once again suggest that international relationships are far more likely than national ones to end in divorce.
It is far more difficult, though, to formalise these divorces, while their impact is massive, for one of the partners is invariably based in a foreign country, where they do not have a social safety net or are not sufficiently familiar with the situation in that country, which makes it very difficult to reach a fair settlement.
This is why I should like to express my appreciation for the work of the rapporteur, Mrs Gebhardt: I think she has been very conscientious and has made sure that particularly the rights of weaker or less informed people are enhanced and that all partners are really well informed of their rights and know what is best for them.
What I do find important in this respect is that the website not only contains some kind of summary of the finances and how quickly you can get a divorce, but that, for example, attention is also devoted to the possible parenthood options. I happen to be of the opinion that the rights of the children should be safeguarded, although that is up to the parents. Whilst it is the parents, and not the government, who should determine what is right and in the interest of the child, it should be possible to reach a suitable solution, preferably one where the children are cared for by both parents. An agreement should in any event be on the table. Not everything should land on the woman's shoulders, but there should be an agreement about how both parents deal with the matter.
I too found the comment made by our Swedish fellow MEP puzzling, because, if a woman wants to leave a marriage, surely it is awful if her husband should not be in agreement.
I should like to finish off by saying to the rapporteur that gay marriage does not exist in the Netherlands. We have a marriage that is open to all couples, irrespective of their sex. It is simply one marriage and it is therefore only the European Union, and not the Netherlands, that draws a distinction within our Dutch marriage
Eva-Britt Svensson
on behalf of the GUE/NGL Group. - (SV) Madam President, the proposal is intended to ensure that people getting divorced can genuinely enforce their rights and obtain the information they need. However, the right to information and knowledge is not dependent on common regulations. These do not in themselves increase awareness or make people better informed.
The rule in my own county, Sweden, is that, unless they have young children together, it is enough for people merely to give notice of the divorce. There are also examples of other EU countries where divorce is completely prohibited. If anything proves the need for legislation in this area, it is this state of affairs. Certainly, the Treaty of Lisbon puts certain aspects of civil and family law on a supranational basis, but we have no Treaty of Lisbon as matters stand. I question why the Commission is putting forward proposals in a sphere that, to date, has been an area of national competence. My group will not vote in favour of the proposal. I also thought that an extremely good case was put by my fellow Member from the Socialist Group in the European Parliament, Mrs Segelström.
Johannes Blokland
on behalf of the IND/DEM Group. - (NL) Madam President, international private law pertains to two questions. The first question is: which court is authorised? The second question is: which law should the court apply?
It is understandable, in my view, that the first question is dealt with at European level. This guarantees that every European citizen can put their case before a court of law.
The second question relates to an area that is typically dealt with, and indeed should be dealt with, by the Member States themselves. Existing national legislation is subject to many national principles, and these should be observed.
The Commission's proposal also intends to harmonise these collision rules, though. Mrs Gebhardt's report respects most of the Commission's report and does not attempt to remove Chapter IIa from the proposal. For this reason, I shall be voting against the report and against the proposal. I would therefore ask the Council to reject the Commission's proposal too.
Daciana Octavia Sârbu
(RO) First of all, I would like to thank the rapporteur, Mrs Gebhardt, for the excellent work that she has put in. Regarding the proposal for a regulation, it is gratifying to see that a clear, complete legal framework is being established covering both rules relating to jurisdiction, the recognition and enforcement of judgements in matrimonial matters and rules relating to the applicable law, by allowing the parties a certain degree of autonomy.
The Commission's proposal offers the parties the opportunity to choose by common agreement the competent jurisdiction and applicable law. The fact that the spouses enjoy this right in the divorce procedure increases the parties' degree of autonomy and enables them to choose freely, in accordance with certain optional criteria. We must ensure that the choice made by the parties is an enlightened one. In other words, both spouses have been duly informed of the practical implications of their choice. In this respect, it is important for us to consider the best way of ensuring that comprehensive information is made available before the act is signed. Similarly, access to information must be provided, irrespective of each spouse's financial situation.
Gerard Batten
Madam President, Dr Johnson was once asked what advice he would give to a young couple contemplating marriage. His reply was 'don't'. He also described second marriages as 'the triumph of hope over experience'.
This report must elicit similar responses. What advice should be given to nations contemplating having their divorce laws made by the European Union? The answer is obviously 'don't'. To do so, given all the precedents of incompetent and damaging EU legislation, is surely the triumph of hope over experience, to say the least. Amazingly, that also seems to be the conclusion of the Council in this case. The Council does not want the proposals made by the Commission. The Council seems to be very sensibly pulling back from the brink and listening to that old adage, 'marry in haste, repent at leisure'. What fun it is going to be when the Commission comes up with proposals to harmonise gay marriage and sharia law!
Czesław Adam Siekierski
(PL) We are living at a time when borders are disappearing, and our citizens can move and marry freely. Nonetheless, we have so far been unable to make things easier for those who have decided to go their separate ways. One example of the problems relating to the lack of uniform divorce law in Europe is the case of marriages between Poles and Germans. Some 100 000 such couples have registered since 1990. Many of them failed to stand the test of time.
Last year, the European Parliament hosted several Polish people who have lost contact with their children as a result of rulings by the German authorities responsible for children and young people. Allegations of kidnap and a ban on using the Polish language are just two examples of the humiliating treatment meted out to these parents and their children. In response to the violations of human rights perpetrated by the aforementioned institution, a Polish association of parents opposed to discrimination of children in Germany was formed. If we succeed in introducing the proposed changes to divorce law we would be helping many of our citizens to bring a particular stage of their life to a civilised end. Most importantly, we would not have to allow children to be separated from one of their parents.
Carlos Coelho
(PT) Madam President, Mr Barrot, in the Committee on Civil Liberties, Justice and Home Affairs I witnessed the work carried out on this report by Mrs Gebhardt and also my colleague, Mr Demetriou. Mrs Gebhardt has already pointed out that increased mobility is resulting in increasing numbers of marriages, but also in increasing numbers of divorces. The differences in national legislation result in legal uncertainty and, in particular, in unfair opportunities given that the better-informed spouse can resort to the courts governed by the law which best serves his or her interests. I therefore support this initiative which is, in my opinion, extremely important as it provides a clear and complete legal framework on the jurisdiction, recognition and enforcement of these judgments.
I must say that, in my opinion, anything which reduces unnecessary conflict not only ensures more justice for the people, but also, in particular, creates more confidence between those involved in the legal process. It also establishes the area of freedom, security and justice that we all desire.
Konrad Szymański
(PL) As far as I am aware, there is no provision anywhere in the treaties for matrimonial law, that is to say, family law, to be dealt with at Union level. I therefore believe that the Commission's proposal is a typical case of a certain hyperactivity that is totally unnecessary and will only serve to generate confusion as to the nature of the European Union's real competences.
I think this represents a deliberate intrusion into the field, in order to undertake further work on matrimonial law and its harmonisation. Such activity is quite unnecessary, as existing private international law copes very well with matrimonial problems, and also with divorces at an international level.
Ljudmila Novak
(SL) I would like to be able to say that the number of divorces in Europe is declining. Regrettably this is not the case, so we need to address the question of how we can improve the position of those who represent the most vulnerable link in the chain, namely children.
Unfortunately children are the principal victims, particularly in countries where major delays in judicial proceedings occur. My own country, Slovenia, is an example of a country where children suffer greatly before the courts can decide with which parent the children will live. This also leads to major family tragedies and has severe psychological effects on many children.
I know of a number of such cases and I hope that this common directive will also contribute to an improvement in the situation in individual Member States.
Dumitru Oprea
(RO) In the case of the former Communist countries, one way for girls from this region to escape from the state of oppression they were subjected to was to get married, sometimes actually for love, but in most cases for gain. This has resulted, however, in a series of kidnappings, incidents involving psychological and physical torture and in the destruction of human beings. As a consequence of this whole saga, the children who resulted from these marriages have the most to suffer. Ignorance of the law is used as an excuse, but this is totally wrong. Let us consider, in cases of this kind, recommending that, once the marriage is over, when an atmosphere of love, understanding and friendliness prevails, very clear divorce terms should be drawn up, taking into consideration the children resulting from the marriage.
Jacques Barrot
Madam President, I am grateful to all the speakers. I should like to confirm to Mrs Segelström that I certainly have begun discussions with the Swedish authorities. Nevertheless, we are having a great deal of difficulty in understanding your country's position. As Mrs Gebhardt said, Rome III really has at its heart the intention of protecting the weaker spouse at the point when marriage contracts are being concluded. It is truly in this spirit, and it is quite true - perhaps we must continue our dialogue - that we have failed to understand that, in the case of a couple one of whom is Swedish, we also have to take account of the fact that in the absence of any rules, well, it is the 'might is right' principle that prevails. That is where our difficulty in understanding stems from. However, once again, we take note of your position and of that of your Swedish colleague.
In passing, I should also like to correct certain misapprehensions. It is not within our competence, some have said, these questions are exclusively a national competence. Look, there is a paradox here. A Member State cannot exercise a national competence over questions involving two individuals, where one of them is a national of that Member State and the other is not. It is logical that the European Union should surely try to organise matters a little, especially as, contrary to what has been said, international private law has no real answer to this type of problem, and in view of the fact that we have a space in which there is freedom of movement and that space is naturally going to pose more and more problems. If this concern preoccupies the Commission, as it does Parliament, it is not a form of delusion to grapple with the whole problem; it is instead a response to the expectations of a growing number of couples who want to avoid finding themselves in a very confrontational situation in cases of disagreement or break-up. That is where the problem lies! To be sure, I must not let it be said that the Council has said no. It has not said no, it has issued differing opinions! However, for all that, there are nine Member States that are asking for enhanced cooperation. Here is what I wanted to say in conclusion. I remind you that Rome III contains an anti-discrimination clause that allows foreign laws that would not guarantee equality of the spouses to be sidestepped. That much is clear. We are not talking here of sharia, it is a question of this principle of the equality of men and women, and the text enhances the integration of women who are living on our common European soil by giving priority to the law of the country of habitual residence. These women will be able to ask a judge to apply European law in their case if it conforms more closely to the equality of rights. I believe it is this that we should bear in mind.
That being so, this debate has been interesting and I am grateful to all the speakers. I should also like to thank Mrs Gebhardt and Mr Deprez for having willingly taken this opportunity to find out whether, on the eve of a new round of consultations with Member States, we are committing ourselves to an enhanced cooperation exercise. This debate is drawing to a close and I thank the European Parliament very much, for I believe that a great majority of Members really do want us to go down this road, while taking all the care necessary to arrive at the greatest possible consensus. My thanks to Parliament.
Evelyne Gebhardt
Mr President, I should like to thank all the speakers. I wish to make it clear once more that we have further reinforced the provisions which the Commission has proposed and which are already laid down in Rome III, by stating quite clearly the following, for example, in Amendment 25: Should the law indicated [...] not recognise legal separation or divorce or do so in a form that is discriminatory as regards one of the spouses, the lex fori shall apply.
This means that, in such cases, in Sweden, for example, the jurisdiction is located in Sweden. We have stated quite clearly that, if such cases should arise, there is a clear answer. Indeed, this could not possibly be laid down any more clearly in a text - which is why I do not understand what the problem is. However, we should endeavour to understand what it is - and I am obliged to Mr Barrot for expressing his views so clearly and for his willingness to speak to our fellow politicians in Sweden once again - as I am still at a loss.
After all, this regulation is intended to further improve all the existing provisions. Finding a positive answer is very important to me as a woman who has always played a role in shaping women's policy, as the weaker partner tends to be the woman. We must pay particular attention to ensuring that a good position is established.
I also hope that, in the spirit of the compromise for which we have been striving time and again - I am much obliged to Mr Demetriou in this regard - we shall yet succeed in convincing Mr Casini that we have a good position on this. A basis for this is also found in Amendment 38, where we make clear once more - even though this is already stated in the text - that, naturally, only law that is really in keeping with the principles of the European Union and of the Charter of Fundamental Rights should be applied in the Member States, as that goes without saying as far as we are concerned. Anything else would be out of the question; no court in the Union would apply in any way law that was not. I find this utterly inconceivable - which is made clear, of course.
President
The debate is closed.
The vote will take place on Tuesday.
Written statements (Rule 142)
Lidia Joanna Geringer de Oedenberg  
Increased social mobility has led to a higher number of mixed marriages and also of divorces. Difficulties have often arisen concerning the choice of law to apply when each member of a couple hails from a different EU Member State or when one partner is a EU national and the other is not. That is why harmonisation of the provisions on mixed marriages is urgently needed, so as to pre-empt discrimination during the divorce proceedings.
The choice of jurisdiction should be made on the basis of access by both members of the couple to comprehensive information on the most important aspects of national and Community law. They should also be informed about the procedures relating to divorce and separation. The opportunity to choose the appropriate jurisdiction and law should not infringe the rights and equal opportunities of each of the spouses. Consequently, the choice of the law of a particular country must be a choice between the law of the state in which the marriage took place, or the law of the state in which the spouses have had their habitual residence for the last three years or the law of the country of origin.
In addition, it seems appropriate to apply the so-called principle of the law of the state in which the court is located when there is a danger of discriminating against one of the spouses. One example could be the case of women from third countries where divorce is not recognised, but who are resident in the EU and apply for divorce or separation. In such situations, the benefits to the individual of obtaining a divorce or separation, as an expression of their independence as a person, should outweigh arguments for implementation of national law.
Gyula Hegyi  
Hungarian popular opinion is stirred up from time to time by cases in which children of a Hungarian parent are taken abroad by a foreign spouse. Popular opinion sympathises in the first instance with the mother whose child has been taken away, but also feels sorry for the father who has been deprived of his child, if the child ends up in alien and unfavourable circumstances. There are increasing numbers of 'mixed' marriages within the European Union, yet the rules governing the dissolution of marriage and child custody are often chaotic and ambiguous. Community law has hitherto regulated only the framework for disputes, such as the question of jurisdiction, that is, which court is competent to hear divorce or child custody cases. It has not, however, provided solutions with regard to the applicable law in matrimonial matters, in other words, to determining which state's law the courts should apply in legal proceedings. The great divergence between the legislation of Member States thus gave rise to legal uncertainty, often compelling the parties to initiate proceedings as quickly as possible so that the most favourable legal rules might be applicable. The Regulation now in preparation aims to remedy this situation, first of all, by favouring an agreement between the parties. This may be suitable in the case of divorce by mutual consent, but knowing how things often are in practice, I am afraid that this will resolve few legal disputes. The correct solution would be if, over the longer term, we succeeded in developing a unified set of European child custody regulations.
Antonio Masip Hidalgo  
We support the increased cooperation mechanism in this case as it will ensure greater legal certainty and stability, avoid 'forum shopping' and take European integration forward.
In addition, the new system is beneficial as it sets the law of the spouses' common habitual residence as the first applicable law. In the case of Spain, this will replace the criterion of the law of their common nationality, which, bearing in mind the number of immigrant couples living in Spain, is very practical for the courts and citizens seeking justice.
