Cross-border. Initiative to be revived

http://www.timesofmalta.com/articles/view/20100126/local/initiative-to-be-revived

The European Commission has set its eyes on re-launching its controversial initiative to enact a directive on cross-border divorce. However, several member states, including Malta, have already signalled their opposition to the idea of having a two-speed Europe on this sensitive issue.
Spanish Justice Minister Francisco Caamano, whose country holds the EU's rotating Presidency, has backed the Commission's intention to propose an initiative on enhanced cooperation to settle legal matters relating to cross-border divorce in Europe.
His comments, made during an informal meeting of home affairs ministers in Toledo, follow a promise by Justice Commissioner-designate Viviane Reding that she would put forward a request for heightened cooperation in this area within three months of her appointment. Ms Reding's promise constitutes a shift in the Commission's stance, since outgoing Justice Commissioner Jacques Barrot opposed the idea proposed by 10 member states to have enhanced cooperation.
Sources close to the Council, representing member states, told The Times that several EU member states oppose the latest approach being adopted by Ms Reding.
"This is a shift in the EU's position due to the change of responsibilities of the justice dossier," a Council official said. "Many member states have already said they wouldn't like the EU to have 'enhanced cooperation' on family law and many think Ms Reading's proposal will not fly."
Malta is among those that are lukewarm to the idea of having this directive re-launched following the failure to reach consensus some years ago.
"We don't think there should be a two-speed approach on such a sensitive issue once all 27 member states did not agree on the proposed directive," Justice Minister Carmelo Mifsud Bonnici said when contacted yesterday.
From the discussions held during the informal Council meeting, many member states were against the new approach being suggested, he said.
Even the European Parliament was against enhanced cooperation in this area, Dr Mifsud Bonnici added.
Back in 2005 the Commission had made a formal proposal dealing with which law should be applicable in the case of cross-border divorces. The proposal, technically known as Rome III, intended to provide a clear and comprehensive legal framework covering both countries' jurisdictions, as well as applicable law rules in matrimonial matters.
It would have allowed the parties a certain degree of autonomy in choosing the competent court and applicable law in case of divorce.
Following disagreement among member states, with Nordic members preferring their own "liberal" approach to divorce, the Commission had to scrap its proposal as no consensus could be reached.
However, a group of 10 member states later suggested the Commission should launch an "enhanced cooperation" initiative that would allow a group of countries to move ahead in one particular area, even though others opposed it.
As this mechanism, provided by the treaties, is still in its infancy and has never been tested, Mr Barrot opposed the idea. According to EU rules, even in the case of enhanced cooperation, the EU council required the consensus of all member states to approve an initiative.
"It is clear that, apart from Malta, there are other countries, like the UK, Sweden and Finland that do not like this approach of 'pick and choose' especially where it comes to family law issues," a Council official said.
So even in the case that the Commission took up the suggestion of France, Romania, Bulgaria, Hungary, Austria, Spain, Italy, Slovenia, Luxembourg and Greece to re-launch the divorce initiative in an "enhanced cooperation" form, there was clearly no green light, he added.
Malta is at present the only member state that does not allow divorce. In the event of a re-launch, the new proposal will not change Malta's current legislation in any way and divorce would remain illegal.