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

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

Scope

It shall not apply to revenue, customs or administrative matters.

The following shall be excluded from the scope of this Regulation:

(a) the legal capacity of partners,

(b) the existence, validity or recognition of a registered partnership,

(c) maintenance obligations,

(d) the succession to the estate of a deceased partner,

(e) social security,

(f) the entitlement to transfer or adjustment between partners, in the case of dissolution or annulment of the registered partnership, of rights to retirement or disability pension accrued during the registered partnership and which have not generated pension income during the registered partnership,

(g) the nature of rights in rem relating to a property, and

(h) any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.

Article 2

Competence in matters of property consequences of registered partnerships within the Member States

This Regulation shall not affect the competence of the authorities of the Member States to deal with matters of property consequences of registered partnerships.

Article 3

Definitions

For the purposes of this Regulation:

(a) ‘registered partnership’ means the regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation;

(b) ‘property consequences of a registered partnership’ means the set of rules concerning the property relationships of the partners, between themselves and in their relations with third parties, as a result of the legal relationship created by the registration of the partnership or its dissolution;

(c) ‘partnership property agreement’ means any agreement between partners or future partners by which they organise the property consequences of their registered partnership;

(d) ‘authentic instrument’ means a document in a matter of the property consequences of a registered partnership which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument, and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin;

(e) ‘decision’ means any decision in a matter of the property consequences of a registered partnership given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;

(f) ‘court settlement’ means a settlement in a matter of the property consequences of a registered partnership which has been approved by a court, or concluded before a court in the course of proceedings;

(g) ‘Member State of origin’ means the Member State in which the decision has been given, the authentic instrument drawn up, or the court settlement approved or concluded;

(h) ‘Member State of enforcement’ means the Member State in which recognition and/or enforcement of the decision, the authentic instrument, or the court settlement is requested.

For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of property consequences of registered partnerships which exercise judicial functions or act by delegation of power by a judicial authority or under its control, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard, and provided that their decisions under the law of the Member State in which they operate:

(a) may be made the subject of an appeal to or review by a judicial authority; and

(b) have a similar force and effect as a decision of a judicial authority on the same matter.

The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 64.

CHAPTER II

JURISDICTION

Article 4

Jurisdiction in the event of the death of one of the partners

Where a court of a Member State is seised in matters of the succession of a registered partner under Regulation (EU) No 650/2012, the courts of that State shall have jurisdiction to rule on matters of the property consequences of the registered partnership arising in connection with that succession case.

Article 5

Jurisdiction in cases of dissolution or annulment

Article 6

Jurisdiction in other cases

Where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than those provided for in those Articles, jurisdiction to rule on the property consequences of a registered partnership shall lie with the courts of the Member State:

(a) in whose territory the partners are habitually resident at the time the court is seised, or failing that,

(b) in whose territory the partners were last habitually resident, insofar as one of them still resides there at the time the court is seised, or failing that,

(c) in whose territory the respondent is habitually resident at the time the court is seised, or failing that,

(d) of the partners' common nationality at the time the court is seised, or failing that,

(e) under whose law the registered partnership was created.

Article 7

Choice of court

Article 8

Jurisdiction based on the appearance of the defendant

Article 9

Alternative jurisdiction

In other cases, jurisdiction to rule on the property consequences of a registered partnership shall lie with the courts of any other Member State pursuant to Article 6 or 8.

Article 10

Subsidiary jurisdiction

Where no court of a Member State has jurisdiction pursuant to Articles 4, 5, 6, 7 or 8, or when all the courts pursuant to Article 9 have declined jurisdiction and no court of a Member State has jurisdiction pursuant to point (e) of Article 6, Article 7 or 8, the courts of a Member State shall have jurisdiction in so far as immoveable property of one or both partners are located in the territory of that Member State, but in that event the court seised shall have jurisdiction to rule only in respect of the immoveable property in question.

Article 11

Forum necessitatis

Where no court of a Member State has jurisdiction pursuant to Article 4, 5, 6, 7, 8, or 10 or when all of the courts pursuant to Article 9 have declined jurisdiction and no court of a Member State has jurisdiction pursuant to point (e) of Articles 6, or Article 7, 8 or 10, the courts of a Member State may, on an exceptional basis, rule on the property consequences of a registered partnership if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected.

The case must have a sufficient connection with the Member State of the court seised.

Article 12

Counterclaims

The court in which proceedings are pending pursuant to Article 4, 5, 6, 7, 8, 10 or 11 shall also have jurisdiction to rule on a counterclaim if it falls within the scope of this Regulation.

Article 13

Limitation of proceedings

Article 14

Seising a court

For the purpose of this Chapter, a court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the defendant;

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court; or

(c) if the proceedings are opened on the court's own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.

Article 15

Examination as to jurisdiction

Where a court of a Member State is seised of a matter concerning the property consequences of a registered partnership over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.

Article 16

Examination as to admissibility

Article 17

Lis pendens

Article 18

Related actions

Article 19

Provisional, including protective, measures

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.

CHAPTER III

APPLICABLE LAW

Article 20

Universal application

The law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State.

Article 21

Unity of the applicable law

The law applicable to the property consequences of a registered partnership shall apply to all assets that are subject to those consequences, regardless of where the assets are located.

Article 22

Choice of the applicable law

The partners or future partners may agree to designate or to change the law applicable to the property consequences of their registered partnership, provided that that law attaches property consequences to the institution of the registered partnership and that that law is one of the following:

(a) the law of the State where the partners or future partners, or one of them, is habitually resident at the time the agreement is concluded

(b) the law of a State of nationality of either partner or future partner at the time the agreement is concluded, or

(c) the law of the State under whose law the registered partnership was created.

Article 23

Formal validity of the agreement on a choice of applicable law

Article 24

Consent and material validity

Article 25

Formal validity of a partnership property agreement

If the partners are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for partnership property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws.

If only one of the partners is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for partnership property agreements, those requirements shall apply.

Article 26

Applicable law in the absence of choice by the parties

By way of exception and upon application by either partner, the judicial authority having jurisdiction to rule on matters of the property consequences of a registered partnership may decide that the law of a State other than the State whose law is applicable pursuant to paragraph 1 shall govern the property consequences of the registered partnership if the law of that other State attaches property consequences to the institution of the registered partnership and if the applicant demonstrates that:

(a) the partners had their last common habitual residence in that other State for a significantly long period of time; and

(b) both partners had relied on the law of that other State in arranging or planning their property relations.

The law of that other State shall apply as from the creation of the registered partnership, unless one partner disagrees. In the latter case, the law of that other State shall have effect as from the establishment of the last common habitual residence in that other State.

The application of the law of the other State shall not adversely affect the rights of third parties deriving from the law applicable pursuant to paragraph 1.

This paragraph shall not apply when the partners have concluded a partnership property agreement before the establishment of their last common habitual residence in that other State.

Article 27

Scope of the applicable law

The law applicable to the property consequences of registered partnerships pursuant to this Regulation shall govern, inter alia:

(a) the classification of property of either or both partners into different categories during and after the registered partnership,

(b) the transfer of property from one category to the other one,

(c) the responsibility of one partner for liabilities and debts of the other partner,

(d) the powers, rights and obligations of either or both partners with regard to property,

(e) the partition, distribution or liquidation of the property upon dissolution of the registered partnership,

(f) the effects of the property consequences of registered partnerships on a legal relationship between a partner and third parties, and

(g) the material validity of a partnership property agreement.

Article 28

Effects in respect of third parties

The third party is deemed to possess the knowledge of the law applicable to the property consequences of the registered partnership, if:

(a) that law is the law of: (i) the State whose law is applicable to the transaction between a partner and the third party, (ii) the State where the contracting partner and the third party have their habitual residence or, (iii) in cases involving immoveable property, the State in which the property is situated; or

(b) either partner had complied with the applicable requirements for disclosure or registration of the property consequences of the registered partnership specified by the law of: (i) the State whose law is applicable to the transaction between a partner and the third party, (ii) the State where the contracting partner and the third party have their habitual residence, or (iii) in cases involving immoveable property, the State in which the property is situated.

Where the law applicable to the property consequences of a registered partnership cannot be invoked by a partner against a third party by virtue of paragraph 1, the property consequences of the registered partnership in respect of the third party shall be governed:

(a) by the law of the State whose law is applicable to the transaction between a partner and the third party; or

(b) in cases involving immoveable property or registered assets or rights, by the law of the State in which the property is situated or in which the assets or rights are registered.

Article 29

Adaptation of rights in rem

Where a person invokes a right in rem to which he is entitled under the law applicable to the property consequences of a registered partnership and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.

Article 30

Overriding mandatory provisions

Article 31

Public policy (ordre public)

The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

Article 32

Exclusion of renvoi

The application of the law of any State specified by this Regulation means the application of the rules of law in force in that State other than its rules of private international law.

Article 33

States with more than one legal system — territorial conflicts of laws

In the absence of such internal conflict-of-laws rules:

(a) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the habitual residence of the partners, be construed as referring to the law of the territorial unit in which the partners have their habitual residence;

(b) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the partners, be construed as referring to the law of the territorial unit with which the partners have the closest connection;

(c) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of the territorial unit in which the relevant element is located.

Article 34

States with more than one legal system — inter-personal conflicts of laws

In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of the property consequences of registered partnerships, any reference to the law of such a State shall be construed as referring to the system of law or set of rules determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the partners have the closest connection shall apply.

Article 35

Non-application of this Regulation to internal conflicts of laws

A Member State which comprises several territorial units each of which has its own rules of law in respect of the property consequences of registered partnerships shall not be required to apply this Regulation to conflicts of laws arising between such units only.

CHAPTER IV

RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS

Article 36

Recognition

Article 37

Grounds of non-recognition

A decision shall not be recognised:

(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought;

(b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;

(c) if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;

(d) if it is irreconcilable with an earlier decision given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Article 38

Fundamental rights