Enhanced Cooperation, the solution we’ve got?

Clearer rules for cross-border divorces

There are around 16 million marriages each year in the EU which are considered as “international”; meaning couples that are of different nationalities (300,000 marriages a year), couples living apart from each other in different countries or living together in a country other than their home country. Around 140,000 divorces with an “international” element are announced every year.

These cross-border divorces are a big problem since law across the member countries can vary significantly. This system produces a lack of legal certainty and makes it easier for one spouse to take advantage of a partner in a weaker financial position, or who is less quick to act.

An EC proposal, which was made public on 24th March, will allow international couples to chose the applicable law if they were to separate, so long as it is the law of a country to which they have a close connection (long-term residence or nationality) and the various courts would use common factors to decide which country’s law applies when spouses disagree.

The proposal could lead to the application of a foreign law in few cases, as a consequence of the free movement of citizens. “I want to ensure that the single market is more than just free movement of goods and services”, said EU commissioner Viviane Reding when presenting the proposal.

Divorce : the first enhanced cooperation?

This measure, supported by 10 countries (Austria, Bulgaria, France, Greece, Hungary, Italy, Luxemburg, Romania, Slovakia and Spain), is expected to be passed under enhanced cooperation, which allows nine or more members to go ahead with the integration process on a specific issue. It will be the first time since the 1997 treaty change which introduced the possibility, that an enhanced cooperation will be used.

This measure, supported by 10 countries (Austria, Bulgaria, France, Greece, Hungary, Italy, Luxemburg, Romania, Slovakia and Spain), is expected to be passed under enhanced cooperation

Similar EU proposals for helping international couples were put forward in 2006, but they failed to win the unanimous support of all EU governments. Countries with liberal divorce rules were concerned that their courts would be forced to practice more restrictive foreign laws if a couple requested it. Now 10 countries are willing to go ahead alone by using the enhanced cooperation procedure for the first time.

The 10 countries still need the approval by a qualified majority of member states in the EU Council of justice ministers as well as a vote of approval by the European parliament.

Enhanced cooperation : a tool of conviction for further EU integration

Enhanced co-operation allows for a minimum of nine member states to co-operate within the structures of the EU without all member states consensus. It is designed to overcome paralysis, where a proposal is blocked by the veto of an individual state or a small group who do not wish to be part of the initiative. It does not however, allow for an extension of powers outside those permitted by the treaties of the European Union. Such cooperation shall be open at any time to other EU countries willing to join later if they wish and the decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole.

Enhanced co-operation allows for a minimum of nine member states to co-operate within the structures of the EU without all member states consensus

Ironically, it is with divorce that the first enhanced cooperation should be established. It could however, be soon followed by other ones as Algirdas Semeta, the European commissioner for taxation, recently said he may propose to use this tool if some countries block a deal with all 27 EU member states for a common corporate tax base (the creation of a Common Consolidated Corporate Tax Base would allow companies to use the same methodology for calculating their profits throughout the EU, which would reduce compliance costs[1]).

Some critics said that enhanced cooperation will create a two-speed Europe or “a Europe within Europe”. Other member states however, keep the possibility open to “board the train”.

The political will manifested through this enhanced cooperation by 10 states to move forward could lead to a radical change for the future of EU. Member states really willing to pursue EU integration could move forward and use enhanced cooperation as a tool of persuasion for the others. That’s why enhanced cooperation should not be seen as a tool against EU but as a way to begin with some states to convince others. Just as with the Euro.