Hardback
The EU Regulations on the Property Regimes of International Couples
A Commentary
9781788115087 Edward Elgar Publishing
This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.
More Information
Critical Acclaim
Contributors
Contents
More Information
This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. It offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.
Written by experts from a variety of European countries, this Commentary draws on scholarship and practice from a number of EU states to enrich its analysis and explore pertinent questions of jurisprudence. It also highlights the close relationship of the Regulations with other legislative measures of the EU in the field of private international law, such as on matters of succession and matrimonial matters.
This Commentary will be a crucial reference source for practitioners working as family litigation lawyers, estate planning lawyers and notaries. It will also be of interest to scholars and other practitioners working in the field of private international law.
Written by experts from a variety of European countries, this Commentary draws on scholarship and practice from a number of EU states to enrich its analysis and explore pertinent questions of jurisprudence. It also highlights the close relationship of the Regulations with other legislative measures of the EU in the field of private international law, such as on matters of succession and matrimonial matters.
This Commentary will be a crucial reference source for practitioners working as family litigation lawyers, estate planning lawyers and notaries. It will also be of interest to scholars and other practitioners working in the field of private international law.
Critical Acclaim
‘This Italian initiative for a truly European Commentary on the new Regulations for property regimes of international couples must be warmly welcomed. Conceived with the help of a transnational team comprising some of the best academics in the field, this Commentary will help practitioners understanding the new harmonised regimes, as well as other interested lawyers making the necessary cross-references with other rules of the European judicial area. This new Elgar Commentary will be a guide for and towards the European future.’
– Louis d’Avout, Université Panthéon-Assas (Paris II), France
‘The European Property Regulations for spouses and registered partners have, so far, not attracted much attention in legal literature, compared to other European instruments. Over a year after they became applicable, the supply of books on both Regulations in English is still scarce. This gap will now be closed by Ilaria Viarengo and Pietro Franzina with this truly comprehensive Commentary. The book brings together renowned authors from different Member States and will serve practitioners and academics as a valuable resource.’
– Anatol Dutta, Ludwig-Maximilians-Universität München, Germany
– Louis d’Avout, Université Panthéon-Assas (Paris II), France
‘The European Property Regulations for spouses and registered partners have, so far, not attracted much attention in legal literature, compared to other European instruments. Over a year after they became applicable, the supply of books on both Regulations in English is still scarce. This gap will now be closed by Ilaria Viarengo and Pietro Franzina with this truly comprehensive Commentary. The book brings together renowned authors from different Member States and will serve practitioners and academics as a valuable resource.’
– Anatol Dutta, Ludwig-Maximilians-Universität München, Germany
Contributors
Contributors: G. Biagioni, A. Bonomi, B. Campuzano Díaz, J. Carruthers, S. Corneloup, G. Cuniberti, E. D’Alessandro, P. Franzina, M. Gebauer, C. Kohler, S. Marino, C.M. Mariottini, D. Martiny, C.I. Nagy, J. Re, C. Ricci, A. Rodríguez Benot, L. Sandrini, I. Viarengo, P. Wautelet
Contents
Contents:
Preface xxi
General introduction 1
Pietro Franzina and Ilaria Viarengo
CHAPTER I SCOPE AND DEFINITIONS 14
Introduction by Pietro Franzina
Article 1 Scope 17
Comment by Andrés Rodríguez Benot
Article 2 Competence in matters of matrimonial property regimes [of property
consequences of registered partnerships] within the Member States 29
Comment by Silvia Marino
Article 3 Definitions 32
Comment by Andrés Rodríguez Benot
CHAPTER II JURISDICTION 46
Introduction by Andrea Bonomi
Article 4 Jurisdiction in the event of the death of one of the spouses [partners] 50
Comment by Andrea Bonomi
Article 5 Jurisdiction in cases of divorce, legal separation or marriage annulment
[in cases of dissolution or annulment] 67
Comment by Ilaria Viarengo
Article 6 Jurisdiction in other cases 78
Comment by Pietro Franzina
Article 7 Choice of court 85
Comment by Pietro Franzina
Article 8 Jurisdiction based on the appearance of the defendant 92
Comment by Sabine Corneloup
Article 9 Alternative jurisdiction 103
Comment by Pietro Franzina
Article 10 Subsidiary jurisdiction 111
Comment by Pietro Franzina
Article 11 Forum necessitatis 117
Comment by Giacomo Biagioni
Article 12 Counterclaims 125
Comment by Giacomo Biagioni
Article 13 Limitation of proceedings 130
Comment by Pietro Franzina
Article 14 Seising a court 137
Comment by Pietro Franzina
Article 15 Examination as to jurisdiction 146
Comment by Pietro Franzina
Article 16 Examination as to admissibility 151
Comment by Pietro Franzina
Article 17 Lis pendens 158
Comment by Csongor István Nagy
Article 18 Related actions 166
Comment by Csongor István Nagy
Article 19 Provisional, including protective, measures 171
Comment by Lidia Sandrini
CHAPTER III APPLICABLE LAW 185
Introduction by Pietro Franzina
Article 20 Universal application 187
Comment by Dieter Martiny
Article 21 Unity of the applicable law 191
Comment by Dieter Martiny
Article 22 Choice of the applicable law 195
Comment by Christian Kohler
Article 23 Formal validity of the agreement on a choice of applicable law 212
Comment by Christian Kohler
Article 24 Consent and material validity 222
Comment by Christian Kohler
Article 25 Formal validity of a matrimonial [partnership] property agreement 232
Comment by Pietro Franzina
Article 26 Applicable law in the absence of choice by the parties 241
Comment by Dieter Martiny
Article 27 Scope of the applicable law 260
Comment by Janeen M. Carruthers
Article 28 Effects in respect of third parties 271
Comment by Janeen M. Carruthers
Article 29 Adaptation of rights in rem 283
Comment by Patrick Wautelet
Article 30 Overriding mandatory provisions 295
Comment by Martin Gebauer
Article 31 Public policy (ordre public) 306
Comment by Martin Gebauer
Article 32 Exclusion of renvoi 312
Comment by Martin Gebauer
Article 33 States with more than one legal system – territorial conflicts of laws 319
Comment by Beatriz Campuzano Díaz
Article 34 States with more than one legal system – inter-personal conflicts of laws 327
Comment by Beatriz Campuzano Díaz
Article 35 Non-application of this Regulation to internal conflicts of laws 330
Comment by Beatriz Campuzano Díaz
CHAPTER IV RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS 332
Introduction by Pietro Franzina
Article 36 Recognition 334
Comment by Pietro Franzina
Article 37 Grounds of non-recognition 344
Comment by Gilles Cuniberti
Article 38 Fundamental rights 354
Comment by Martin Gebauer
Article 39 Prohibition of review of jurisdiction of the court of origin 360
Comment by Carola Ricci
Article 40 No review as to substance 367
Comment by Csongor István Nagy
Article 41 Staying of recognition proceedings 370
Comment by Elena D’Alessandro
Article 42 Enforceability 374
Comment by Gilles Cuniberti
Article 43 Determination of domicile 379
Comment by Jacopo Re
Article 44 Jurisdiction of local courts 384
Comment by Jacopo Re
Article 45 Procedure 387
Comment by Elena D’Alessandro
Article 46 Non-production of the attestation 391
Comment by Elena D’Alessandro
Article 47 Declaration of enforceability 393
Comment by Elena D’Alessandro
Article 48 Notice of the decision on the application for a declaration of enforceability 395
Comment by Elena D’Alessandro
Article 49 Appeal against the decision on the application for a declaration of
enforceability 398
Comment by Elena D’Alessandro
Article 50 Procedure to contest the decision given on appeal 403
Comment by Elena D’Alessandro
Article 51 Refusal or revocation of a declaration of enforceability 405
Comment by Gilles Cuniberti
Article 52 Staying of proceedings 409
Comment by Elena D’Alessandro
Article 53 Provisional, including protective, measures 411
Comment by Lidia Sandrini
Article 54 Partial enforceability 419
Comment by Gilles Cuniberti
Article 55 Legal aid 422
Comment by Csongor István Nagy
Article 56 No security, bond or deposit 425
Comment by Csongor István Nagy
Article 57 No charge, duty or fee 428
Comment by Csongor István Nagy
CHAPTER V AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS 430
Introduction by Pietro Franzina
Article 58 Acceptance of authentic instruments 432
Comment by Pietro Franzina
Article 59 Enforceability of authentic instruments 445
Comment by Pietro Franzina
Article 60 Enforceability of court settlements 452
Comment by Gilles Cuniberti
CHAPTER VI GENERAL AND FINAL PROVISIONS 455
Introduction by Pietro Franzina
Article 61 Legalisation and other similar formalities 456
Comment by Csongor István Nagy
Article 62 Relations with existing international conventions 458
Comment by Cristina M. Mariottini
Article 63 Information made available to the public 468
Comment by Jacopo Re
Article 64 Information on contact details and procedures 470
Comment by Jacopo Re
Article 65 Establishment and subsequent amendment of the list containing the
information referred to in Article 3(2) 474
Comment by Jacopo Re
Article 66 Establishment and subsequent amendment of the attestations and forms
referred to in point (b) of Article 45(3) and Articles 58, 59 and 60 477
Comment by Silvia Marino
Article 67 Committee procedure 480
Comment by Silvia Marino
Article 68 Review clause 481
Comment by Silvia Marino
Article 69 Transitional provisions 483
Comment by Giacomo Biagioni
Article 70 Entry into force 489
Comment by Giacomo Biagioni
Annex 1 Preamble to Council Regulation (EU) 2016/1103 of 24 June 2016
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of
matrimonial property regimes 493
Preamble to Council Regulation (EU) 2016/1104 of 24 June 2016 implementing
enhanced cooperation in the area of jurisdiction, applicable law and the
recognition and enforcement of decisions in matters of the property
consequences of registered partnerships 508
Annex 2 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced
cooperation in the area of jurisdiction, applicable law and the recognition
and enforcement of decisions on the property regimes of international
couples, covering both matters of matrimonial property regimes and the
property consequences of registered partnerships 524
Annex 3 Commission Implementing Regulation (EU) 2018/1935 of 7 December 2018
establishing the forms referred to in Council Regulation (EU) 2016/1103
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of
matrimonial property regimes [2018] OJ L314 529
Annex 4 Commission Implementing Regulation (EU) 2018/1990 of 11 December 2018
establishing the forms referred to in Council Regulation (EU) 2016/1104
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of the
property consequences of registered partnerships [2018] OJ L320 531
Annex 5 Information provided by the Member States in accordance with Article 64
of the Property Regimes Regulations 533
Index 535
Preface xxi
General introduction 1
Pietro Franzina and Ilaria Viarengo
CHAPTER I SCOPE AND DEFINITIONS 14
Introduction by Pietro Franzina
Article 1 Scope 17
Comment by Andrés Rodríguez Benot
Article 2 Competence in matters of matrimonial property regimes [of property
consequences of registered partnerships] within the Member States 29
Comment by Silvia Marino
Article 3 Definitions 32
Comment by Andrés Rodríguez Benot
CHAPTER II JURISDICTION 46
Introduction by Andrea Bonomi
Article 4 Jurisdiction in the event of the death of one of the spouses [partners] 50
Comment by Andrea Bonomi
Article 5 Jurisdiction in cases of divorce, legal separation or marriage annulment
[in cases of dissolution or annulment] 67
Comment by Ilaria Viarengo
Article 6 Jurisdiction in other cases 78
Comment by Pietro Franzina
Article 7 Choice of court 85
Comment by Pietro Franzina
Article 8 Jurisdiction based on the appearance of the defendant 92
Comment by Sabine Corneloup
Article 9 Alternative jurisdiction 103
Comment by Pietro Franzina
Article 10 Subsidiary jurisdiction 111
Comment by Pietro Franzina
Article 11 Forum necessitatis 117
Comment by Giacomo Biagioni
Article 12 Counterclaims 125
Comment by Giacomo Biagioni
Article 13 Limitation of proceedings 130
Comment by Pietro Franzina
Article 14 Seising a court 137
Comment by Pietro Franzina
Article 15 Examination as to jurisdiction 146
Comment by Pietro Franzina
Article 16 Examination as to admissibility 151
Comment by Pietro Franzina
Article 17 Lis pendens 158
Comment by Csongor István Nagy
Article 18 Related actions 166
Comment by Csongor István Nagy
Article 19 Provisional, including protective, measures 171
Comment by Lidia Sandrini
CHAPTER III APPLICABLE LAW 185
Introduction by Pietro Franzina
Article 20 Universal application 187
Comment by Dieter Martiny
Article 21 Unity of the applicable law 191
Comment by Dieter Martiny
Article 22 Choice of the applicable law 195
Comment by Christian Kohler
Article 23 Formal validity of the agreement on a choice of applicable law 212
Comment by Christian Kohler
Article 24 Consent and material validity 222
Comment by Christian Kohler
Article 25 Formal validity of a matrimonial [partnership] property agreement 232
Comment by Pietro Franzina
Article 26 Applicable law in the absence of choice by the parties 241
Comment by Dieter Martiny
Article 27 Scope of the applicable law 260
Comment by Janeen M. Carruthers
Article 28 Effects in respect of third parties 271
Comment by Janeen M. Carruthers
Article 29 Adaptation of rights in rem 283
Comment by Patrick Wautelet
Article 30 Overriding mandatory provisions 295
Comment by Martin Gebauer
Article 31 Public policy (ordre public) 306
Comment by Martin Gebauer
Article 32 Exclusion of renvoi 312
Comment by Martin Gebauer
Article 33 States with more than one legal system – territorial conflicts of laws 319
Comment by Beatriz Campuzano Díaz
Article 34 States with more than one legal system – inter-personal conflicts of laws 327
Comment by Beatriz Campuzano Díaz
Article 35 Non-application of this Regulation to internal conflicts of laws 330
Comment by Beatriz Campuzano Díaz
CHAPTER IV RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS 332
Introduction by Pietro Franzina
Article 36 Recognition 334
Comment by Pietro Franzina
Article 37 Grounds of non-recognition 344
Comment by Gilles Cuniberti
Article 38 Fundamental rights 354
Comment by Martin Gebauer
Article 39 Prohibition of review of jurisdiction of the court of origin 360
Comment by Carola Ricci
Article 40 No review as to substance 367
Comment by Csongor István Nagy
Article 41 Staying of recognition proceedings 370
Comment by Elena D’Alessandro
Article 42 Enforceability 374
Comment by Gilles Cuniberti
Article 43 Determination of domicile 379
Comment by Jacopo Re
Article 44 Jurisdiction of local courts 384
Comment by Jacopo Re
Article 45 Procedure 387
Comment by Elena D’Alessandro
Article 46 Non-production of the attestation 391
Comment by Elena D’Alessandro
Article 47 Declaration of enforceability 393
Comment by Elena D’Alessandro
Article 48 Notice of the decision on the application for a declaration of enforceability 395
Comment by Elena D’Alessandro
Article 49 Appeal against the decision on the application for a declaration of
enforceability 398
Comment by Elena D’Alessandro
Article 50 Procedure to contest the decision given on appeal 403
Comment by Elena D’Alessandro
Article 51 Refusal or revocation of a declaration of enforceability 405
Comment by Gilles Cuniberti
Article 52 Staying of proceedings 409
Comment by Elena D’Alessandro
Article 53 Provisional, including protective, measures 411
Comment by Lidia Sandrini
Article 54 Partial enforceability 419
Comment by Gilles Cuniberti
Article 55 Legal aid 422
Comment by Csongor István Nagy
Article 56 No security, bond or deposit 425
Comment by Csongor István Nagy
Article 57 No charge, duty or fee 428
Comment by Csongor István Nagy
CHAPTER V AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS 430
Introduction by Pietro Franzina
Article 58 Acceptance of authentic instruments 432
Comment by Pietro Franzina
Article 59 Enforceability of authentic instruments 445
Comment by Pietro Franzina
Article 60 Enforceability of court settlements 452
Comment by Gilles Cuniberti
CHAPTER VI GENERAL AND FINAL PROVISIONS 455
Introduction by Pietro Franzina
Article 61 Legalisation and other similar formalities 456
Comment by Csongor István Nagy
Article 62 Relations with existing international conventions 458
Comment by Cristina M. Mariottini
Article 63 Information made available to the public 468
Comment by Jacopo Re
Article 64 Information on contact details and procedures 470
Comment by Jacopo Re
Article 65 Establishment and subsequent amendment of the list containing the
information referred to in Article 3(2) 474
Comment by Jacopo Re
Article 66 Establishment and subsequent amendment of the attestations and forms
referred to in point (b) of Article 45(3) and Articles 58, 59 and 60 477
Comment by Silvia Marino
Article 67 Committee procedure 480
Comment by Silvia Marino
Article 68 Review clause 481
Comment by Silvia Marino
Article 69 Transitional provisions 483
Comment by Giacomo Biagioni
Article 70 Entry into force 489
Comment by Giacomo Biagioni
Annex 1 Preamble to Council Regulation (EU) 2016/1103 of 24 June 2016
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of
matrimonial property regimes 493
Preamble to Council Regulation (EU) 2016/1104 of 24 June 2016 implementing
enhanced cooperation in the area of jurisdiction, applicable law and the
recognition and enforcement of decisions in matters of the property
consequences of registered partnerships 508
Annex 2 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced
cooperation in the area of jurisdiction, applicable law and the recognition
and enforcement of decisions on the property regimes of international
couples, covering both matters of matrimonial property regimes and the
property consequences of registered partnerships 524
Annex 3 Commission Implementing Regulation (EU) 2018/1935 of 7 December 2018
establishing the forms referred to in Council Regulation (EU) 2016/1103
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of
matrimonial property regimes [2018] OJ L314 529
Annex 4 Commission Implementing Regulation (EU) 2018/1990 of 11 December 2018
establishing the forms referred to in Council Regulation (EU) 2016/1104
implementing enhanced cooperation in the area of jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of the
property consequences of registered partnerships [2018] OJ L320 531
Annex 5 Information provided by the Member States in accordance with Article 64
of the Property Regimes Regulations 533
Index 535
