Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbastthat since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and theninitiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustivelist of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

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Child abduction: a further extension of EU exclusive external powers

Steve Peers

It's every parent's worst nightmare: the abduction of their child. If the child is abducted by a stranger, there's obviously a grave threat to the child. But it's far more common for a child to be abducted by a parent who doesn't have custody of him or her, in the context of family law proceedings.

While it's fortunately much less likely that a parent is a threat to a child's welfare, such abductions are still problematic, since they are a breach of court decisions regarding custody. And if the child is taken to another country by the abducting parent, it is far harder for the parent with custodial rights to enforce them. Sometimes, the latter parent doesn't even get to see his or her children for years.

To address this problem, the Hague Conference (an international body) drew up an international treaty, the Hague Convention on the civil aspects of child abduction, back in 1980. All the EU Member States are party to this treaty. In fact, a total of 93 countries have ratified it. According to the latest available statistics, in 2008 the Convention was applied about 2300 times. Two-thirds of the parents taking children were the mothers, and the average age of the abducted children was six. 

Indeed, the very popularity of the Convention was at the heart of a dispute over the EU’s external power regarding it, which was resolved yesterday by the CJEU (Opinion 1/2013). This judgment concerned new States signing up to the Convention, which has an unusual rule on accession: it only applies to new States which ratify it to the extent that the existing signatories individually agree to this.

The EU is not itself a party to the treaty, and it can't be, since the treaty only permits States to be parties. But in the years since the treaty was drawn up, the EU has adopted legislation which addresses child abduction issues (Regulation 2201/2003). So arguably this means that the EU has external competence as regards the subject matter of the Convention, and Member States are only 'trustees' of that power.  In practice, that means that Member States cannot decide unilaterally whether to extend the Convention to new countries or not.

The Commission, believing that this interpretation was correct, proposed in 2011 that the Council adopt eight separate decisions permitting Member States to extend the Convention to third States, including Russia, Albania and Morocco. Most Member States disagreed. So the Commission invoked the special procedure set out in Article 218 TFEU, which allows the CJEU to decide on whether an envisaged international agreement would be in conformity with EU law.

Judgment

The CJEU had to address four arguments against the admissibility of this case.  First of all, the Court ruled that the decision on accession of a new State to the Convention was an 'agreement'. Secondly, it ruled that the impossibility of the EU itself becoming party to the Convention was irrelevant. As it had ruled before, it has jurisdiction under Article 218 TFEU even in 'trusteeship' cases.

Thirdly, the Court ruled that an agreement could still be considered as being 'envisaged' even if a large majority of the Member States in the Council were opposed to it, making its adoption improbable politically. Finally, the Court decided that it was irrelevant that a number of Member States had gone ahead and agreed to extend the Convention to the third States concerned. The possibility that the Commission could have sued those Member States for infringing EU law didn't stop the Commission from invoking the special jurisdiction of Article 218 TFEU.

As for the substance of the case, 19 Member States opposed the Commission view that the EU had external competence in this case. Only the European Parliament, along with Italy, supported the Commission. Nevertheless, the Court agreed with the Commission.

The Court began by noting that the EU has external competence not only when the Treaties expressly provide for it, but also when this is necessary to realise the internal objectives of the EU, even if the Treaties don't make express provision for this. Indeed, the Court stated that Article 216 TFEU now sets out this rule. In this case, the EU competence existed merely because Article 81(3) TFEU gives the EU internal power to adopt legislation on family law matters with cross-border implications.

However, the bigger issue is whether such competence is exclusive, or merely shared with the Member States. On this point, the Court reaffirmed that the EU would enjoy exclusive competence, as set out in its prior case-law and Article 3(2) TFEU, where an international treaty was liable to affect common EU rules or alter their scope. This was the case when the treaty fell within an area which was largely covered by the EU rules.

Applying that law to the facts, the main provisions of the Convention, dealing with return of the child and the right to visit a child, were also the subject of rules in the Regulation. There was a risk that patchwork extension of the treaty to third States by Member States would complicate application of the EU legislation, particularly where a dispute concerned a third State and two Member States, each of which had taken a different view on extending the treaty to the relevant third State. So it followed that the EU had exclusive external competence regarding the extension of the Convention to new countries. 

Comments

The Court’s judgment raises three issues: its impact upon child abduction in practice; the substantive scope of the EU’s external competence generally; and the process of litigating disputes about that competence.

On the first point, fortunately for the children concerned, the dispute regarding the EU’s external competence in this case doesn’t appear to have prevented Member States from extending the Convention to new countries in practice. However, since the new judgment resolves the issue, the Council now needs to move forward quickly to adopt the Commission’s earlier proposals (on family law issues, the Council votes unanimously, after consulting the European Parliament). Also, seven more States have ratified the Convention in the meantime, including Japan and Korea (see the full list of signatories here), so the Commission needs to propose further such measures straight away. A failure to act quickly will run the risk that a parent who has abducted a child to Russia (for example) might try to argue against the enforcement of a ruling issued by a Member State’s court on the return of a child, on the grounds that the Member State’s extension of the Convention to Russia was illegal.

The Court’s ruling also means that any amendment of the Convention in future will also fall within the scope of the EU’s exclusive external competence. This isn’t a purely hypothetical possibility, as there was some contemplation of a protocol to the Convention a few years ago (for the details, see here).  So it’s now clear that Member States will have to act together, or not at all, as regards any amendment to the Convention, and any extension of it to new countries.

As regards the EU’s external competence, there are two issues: the existence and nature of that competence. In fact, this is the first CJEU judgment since the entry into force of the Treaty of Lisbon which touched upon the existence of such competence. The Court’s judgment appears to assume that Article 216 TFEU simply reflects the prior case law; this issue had been debated in literature. And according to the Court, external competence exists where there is an internal legal base and the EU has adopted legislation on the subject in question. The Court didn’t rule on whether the existence of legislation on an issue was necessary before the EU could exercise its external competence. But on the facts of the case, it didn’t have to address that issue.

Moving on to the nature of the EU’s external competence, the Court’s ruling is not very surprising, following the pre-Lisbon judgment on the exclusivity of the EU’s external competence over civil jurisdiction issues (Opinion 1/03), and more recently the broadcasting rightsjudgment, confirming and elaborating a broad approach to finding that EU external competence is exclusive. In fact, EU exclusive competence as regards the child abduction Convention is more self-evident than as regards the planned broadcasters’ rights Convention, given that the two main aspects of the child abduction Convention clearly correspond to provisions of an EU Regulation, which moreover expressly incorporates or supplements some aspects of the Convention.

Finally, as regards the procedural aspects of this case, all four aspects of the Court’s ruling (the definitions of ‘agreement’ and ‘envisaged’, the application to ‘trusteeship’ cases and the relationship with infringement actions) take a broad approach to the scope of its jurisdiction pursuant to Article 218 TFEU. In effect, it’s now clear that all the Commission needs to do in order to trigger the possible use of Article 218 is to make a proposal for an external relations decision by (or on behalf of) the EU to the Council. Even if that proposal is ‘dead on arrival’ in the Council (as in this case), to the extent that Member States ignore the Commission’s proposal and begin ratifying the relevant treaty (or taking other external action) themselves, the Commission can still invoke the Court’s jurisdiction under Article 218. That special jurisdiction only ceases to apply if the Council approves the treaty concerned on the EU’s behalf, and the treaty then binds the EU. This precisely won’t ever be the case if the Council rejects the Commission’s proposal at the outset.

Having said that, the Court’s judgment does appear to draw a distinction between legaland political reasons for rejecting a Commission proposal, stating that in this case, the case was admissible because the Council’s reasons for rejection were purely legal. What if its objections were political – or both legal and political? And how can one tell the difference between those grounds?

Furthermore, does this reasoning also apply to the European Parliament? It has no veto right over family law treaties, but it does over most treaties concluded by the EU. The Commission passed up a chance to clarify this issue when it withdrew its request for a CJEU Article 218 ruling as regards the controversial Anti-Counterfeiting Trade Agreement, after the EP refused its consent to that treaty on political grounds. Arguably, the legal questions remain relevant even if a treaty has been rejected by either the Council or the EP on political grounds; but the Commission surely shows good judgment by accepting the political decision of either branch of the EU’s legislature and withdrawing applications for a Court ruling in such circumstances.

Barnard & Peers: chapter 24

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