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European PIL

European PIL. Particular problems. Enhanced cooperation DIVORCE. A first in EU history: enhanced cooperation is in force Agreement of all Member States impossible (unanimity required) 14 States (= more than 9) interested to move forward

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European PIL

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  1. European PIL Particular problems

  2. Enhanced cooperationDIVORCE • A first in EU history: enhanced cooperation is in force • Agreement of all Member States impossible (unanimity required) • 14 States (= more than 9) interested to move forward • (Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain) • other Member States may join the original ones later • The requirement of last resort in Article 20(2) of the Treaty on European Union is fulfilled in that the Council established in June 2008 that the objectives of the proposed Regulation cannot be attained within a reasonable period by the Union as a whole.

  3. Enhanced cooperationDIVORCE • = adopt a regulation making possible for divorcing couples to elect the applicable law for the divorce • - erga omnes = available for all divorcing foreigners (but not purely national divorces) • Why important: "EU works for its citizens" • (Why not an international treaty? Here national Parliaments are circumvented) /serk-mventyd/ • Will this precedent deepen European integration - ? • Some have expressed fears that the use of enhanced cooperation could be the end of European integration as we know it.

  4. Enhanced cooperationDIVORCE • In case the couple cannot agree, judges would have a common formula for deciding which country's law applies. • Couples would have more legal certainty, predictability and flexibility. This would help protect spouses and their children from complicated, lengthy and painful procedures. • The need for EU action is clear: There were more than 1 million divorces in the 27 Member States in 2007, of which 140,000 (13%) had an "international" element.

  5. Enhanced cooperationDIVORCE • Background • Under the EU Treaties, enhanced cooperation allows nine or more countries to move forward on a measure that is important but is blocked by a small minority of Member States. Other EU countries keep the right to join when they want (Article 331, Treaty on the Functioning of the EU). • The Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the progressive establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters with cross-border implications, particularly when necessary for the proper functioning of the internal market.

  6. Enhanced cooperationDIVORCE • COUNCIL DECISION • of 12 July 2010 • authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2010/405/EU) • Enhanced cooperation in the area of the law applicable to divorce and legal separation complies with the Treaties and Union law, and it does not undermine the internal market or economic, social and territorial cohesion. It does not constitute a barrier to or discrimination in trade between Member States and does not distort competition between them. --------------------------------------- • The Commission makes a similar proposal on which EU rules apply when it comes to the division of international couples' property in divorce procedures.

  7. Citizenship (nationality) – EU PIL • SPECIAL PROBLEM: Citizenship (nationality) as a connecting factor and the EU prohibition of discrimination on grounds of nationality (Art. 18 TFEU) • connecting factor: lex patriae • different nationality = different applicable law • is this discrimination?

  8. Citizenship • Examples: Boukhalfa v. Germany C-214/94 - labour law (labour conditions) • German Embassy in Algeria: German staff - German law, Belgian staff - local (Algerian) law • ECJ: Belgian citizen could be treated differently, but not worse as a German national • Data Delecta C-43/95 - security to guarantee the costs of the judicial proceedings • foreign national not residing in Sweden must furnish the security, Swedish national not • ECJ: Swedish provision inapplicable

  9. Citizenship • Prohibition of discrimination on the grounds of nationality: • Art. 18 TFEU: • Within the scope of application of the Treaties (TEU and TFEU), and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. • Before Amsterdam: family and succession matters (conflicts of law and jurisdiction) did not fall within the scope of EC (EU) law (Johannes C-430/97) • After Amsterdam: within the scope of Art. 18 (TFEU)!

  10. Citizenship • Another problem: • Country of origin principle (goods, persons) • ECJ: Centros C-212/97 • minimum capital reqiered in Danemark for the establishment of a company • how to circumvent: the company is created in England (no capital required), operation in Danemark as a Danish branch of a (fictive) UK company • ECJ approved it - freedom of establishment is more important (establishment of an English company in Danemark) - ?

  11. Citizenship • Another case: • Konstantinidis case C-168/91 • Greek national working in Germany - German law requirement of spelling his Greek name in Latin characters • ECJ: discouraging some people from exercising their right to move to another member state • Moving person: law of new habitual residence, but, if he so desires, he may choose to have his personal matters governed by the law of his country of origin instead - this may work for surnames, but not for the matrimonial regime

  12. Unification of substantive civil law in the EU • Harmonisation of consumer protection law: • the Doorstep Selling Directive 85/577 • the Package Travel Directive 90/314 • the Unfair Contract Terms Directive 93/13 • the Timeshare Directive 94/47 • the Distance Selling Directive 97/7 • the Price Indication Directive 98/6 • the Injunctions Directive 98/27 • and the Consumer Sales Directive 99/44.

  13. Unification of substantive civil law in the EU • Harmonisation of consumer protection law: • Directives to be replaced by the Directive on Consumer Rights • Sale of consumer goods and guarantees (99/44/EC) • Unfair contract terms (93/13/EC) • Distance selling (97/7/EC) • Doorstep selling (85/577/EC)

  14. Unification of substantive civil law in the EU • Harmonisation of consumer protection law (DCR – follow up): • The Commission recognises that the full harmonisation approach successfully pursued • with the Unfair Commercial Practices Directive in the field of consumer protection • marks a new departure in the area of consumer contractual rights. This causes for an • appropriate communication strategy to explain the impact and benefits of the proposal. • In addition to the interinstitutional dialogue with Parliament and Council, the • Commission intends to engage actively with all stakeholders in the months ahead in the • various Member States.

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