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Global Justice Network (GJN) is organizing a debate on the practical implications of Brexit and the current state of the law on June 24, 2021. This debate will be presented by: Professor Duncan Fairgrieve, Senior Fellow in Comparative Law, British Institute of International and Comparative Law, and Professor of Comparative Law, Université Paris Dauphine PSL as well as Professor Gilles Cuniberti from the Faculty of Law, Economics and Finance of the University of Luxembourg.

The moderator of this debate will be Carlos Villacorta of BCV Lex (Madrid, Bordeaux), member of the GJIN committee.

Two positions will be defended during this debate: a pro-Brexit side on one side and a counter-Brexit side on the other.

The withdrawal of the United Kingdom from the European Union has economic, commercial, and of course legal consequences. Indeed, long negotiations between the United Kingdom and the European Union were necessary to reach a withdrawal agreement, to get out of all European regulations but also to find new agreements with this recent third country to the European Union

A member state of the European Union can withdraw from the Union under Article 50 of the Treaty on European Union (TEU). The United Kingdom is the first country to activate this article, through a notification to the European Council on March 29, 2017. The date of the Brexit was postponed due to the difficulty of the negotiations, until the Brexit was finally realized on January 31, 2020, leading then to a transition period for the next eleven months: until January 1, 2021.

The negotiations and new agreements between the United Kingdom and the European Union (and its member states) are mostly resolved, yet changes are to come as the Brexit inevitably impacts the legal sector.

 This is an open invitation to participate on this debate

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ELC was interested in the European Regulation 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law, recognition, and enforcement of judgments in matrimonial matters. This study allowed us to be prepared to answer your questions on the subject to provide you with a quality service.

This regulation, adopted on June 24, 2016, is the result of many years of discussions. It applies to the area of matrimonial property regimes of couples with foreign elements and this, following the mechanism of enhanced cooperation. As a result, the applicability of the Regulation will be limited to those Member States which have expressly so wished.

The Regulation establishes harmonized connecting factors for determining the applicable law to the matrimonial property regime and the competent court. The Regulation also simplifies the recognition and enforcement of judgments and the acceptance and enforcement of authentic instruments relating to matrimonial property regimes.

In this article, we will deal only with the part of the Regulation concerning the applicable law to the matrimonial property regime.

1.       The scope of application

The Regulation applies to matrimonial property regimes with a foreign element.

The spouses concerned

For spouses of the same nationality:

     With habitual residences in different States at the time of the celebration of the marriage or the drafting of the agreement organizing or modifying their regime, or

    With the property of either spouse in a State different from that of nationality or residence, or

    Having celebrated their marriage in a State different from that of their nationality or residence.

Spouses of different nationalities, regardless of their place of habitual residence, the situation of their property, or the celebration of the marriage.

Enhanced cooperation (art. 70)

The Regulation is only applicable in the Member States participating in enhanced cooperation. The non-participating Member States are to be considered as third States in the application of the Regulation.

Exclusions (provided for in Article 1)

Excluded from the scope of application are fiscal, customs, or administrative matters, the legal capacity of spouses, the existence, validity, or recognition of a marriage, maintenance obligations, succession, jurisdiction, and applicable law in matters of divorce, legal separation, or marriage annulment, social security, the right to transfer or adapt between spouses, the nature of rights in rem, etc.

Application in time (art. 69, 70)

The regulation entered into force on July 28, 2016.

2.       Applicable law in the absence of a choice by the spouses (art. 26)

If no law is designated, a hierarchy of connecting factors is used to determine the applicable law:

1. The first common habitual residence of the spouses after the celebration of the marriage.
2. Failing that, the common nationality at the time of the marriage. This criterion cannot be used when the spouses have several common nationalities.
3. Failing that, the law of the State with which the spouses have the closest connection at the time of the celebration of the marriage.

Exceptionally, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the celebration of the marriage shall apply, provided that the following circumstances are met:

      That one of the spouses so requests;

      That the spouses had their last common habitual residence in that other State for a period significantly longer than their first common habitual residence;

      That both spouses have relied on the law of that other State to organize or plan their property relations;

      That the spouses did not conclude an agreement before the date of their last common habitual residence in that other State.

3.       Choice of law

The Regulation offers the possibility of choosing the law of one of the States of which at least one of the spouses has the nationality or the law of his or her habitual residence at the time of the choice (art. 22). This choice of law applicable to the matrimonial regime may be express or implicit.

For the choice to be valid, it must meet certain conditions, in particular

      Formal conditions: the choice agreement must be in writing, dated, and signed by both spouses. Certain conditions are added for particular cases (art. 23), for example in case of residence in different Member States.

      Material conditions: the existence and validity of the substance of the agreement are subject to the law chosen by the spouses as applicable to the matrimonial property regime (art. 24)

4.       Characteristics of the applicable law

The Regulation distinguishes various principles concerning the applicable law to the matrimonial property regimes of couples with foreign elements.

First of all, the principle of universality of the applicable law according to Art. 20 provides that the designated law applies even if that law is not that of a Member State.

Second, there is the principle of unity of applicable law. This principle provides that the law will be applied to all of the couple's assets, regardless of their location (art. 21) or their nature.

There is also the principle of immutability of the applicable law. It is defined by the fact that the matrimonial regime is fixed by the applicable law from the initial moment of the celebration of the marriage and is not modified thereafter.

Finally, as provided for in art. 27 of the present regulation, the applicable law to the matrimonial property regime governs different areas: this is the scope of the applicable law.

One should not forget the exceptions to the applicable law, such as public policy (art. 31) and mandatory law (art. 30).

"We have reached an agreement on the recovery plan and the European budget [...] This agreement sends a concrete signal that the EU is a driving force. "These were the words of Charles Michel, President of the European Council, following the summit of July 17-21st of 2020, during which the leaders of the European Union negotiated the amount of the budget for the period 2021-2027.

 This budget represents a total of €1.8 trillion to help member states address the economic consequences caused by the pandemic through a greener, more digital and more resilient Europe. To support this, NextGenerationEU, as a temporary instrument, was created to stimulate recovery to address the unprecedented nature of the situation.

Foremost, NextGenerationEU introduces a new funding model for the EU. Its long-term budget will retain the standard structure of customs duties on imports from third countries, on levy on part of the VAT, and contributions based on gross national income.

The novelty lies in the origin of the loans allocated to member states. They will be made possible by "borrowing resources", which means that the European Union will borrow on the capital market.  Secondly, the recovery plan intends to set up new resources focused on ecological priorities. For example, a levy on non-recycled plastics or a tax on the activities of large companies are examples of contributions that could be used to pay for the recovery plan.

Member States had never before agreed to take on such a large amount of debt in the name of common solidarity[1].  Despite this, this commitment speaks volumes about the willingness of the states to preserve the European project. 750 billion annual budgets for 2021 was adopted by the European Parliament and the Council on March 17th, 2021.

So far, 16 member states have ratified the fund for the current year. However, on March 26th, 2021, the ratification process was suspended in Germany. The German Constitutional Court issued an interim injunction suspending the ratification process. The reason is that Germany has always been reluctant to share the burden of debt with other states.

In fact, this interruption risks to further slow down the implementation of these 750 billion funds, at a time when the pandemic is still affecting Europe and with severe impacts on entire sectors of the economy.

 In recent years, Greece has been dynamically trying to become an attraction for foreigners, competing with other European countries such as Malta, Cyprus, and Portugal, which are organized in similar incentive practices.

The "Golden Visa" plan in combination with the residence permit in Greece (and consequently with free movement throughout the Schengen area) that accompanied it, had paid off, especially during 2019. Foreigners Investors who wanted to acquire it could do so either by investing in real estate in our country, but also in bond shares and mutual funds. However, the coronavirus pandemic seems to have slowed its rise and the relative numbers have dropped significantly.

As a result, new tax incentives were designed targeting both the repatriation of young Greek immigrants (many of them being highly specialized or dispose of qualified scientific training) in order to achieve a reversal of the "brain drain" of the last decade but also aiming at Greece to attract citizens from third countries ready to settle and work or even invest in Greece.

For individuals who decide to relocate in Greece as self-employed or as employees, to another professional employment, a reduction of 50% of their income tax is introduced in Greece for the next 7 years after their establishment, under certain conditions.

At the same time, pensioners (foreigners or of Greek origin) are encouraged to choose to settle in Greece, where their tax obligations are limited to an annual income tax of only 7% of the income from their pensions they earn abroad as long as they now live in our country.

This creates a multifaceted framework of tax incentives which can be of particular interest with proper planning both for the repatriation of Greeks and for the settlement of other active or retired individuals.

Our Law firm through its network in Switzerland is quite familiar with the double taxation avoidance conventions and with the EU directives/regulations as well as the OECD recommendations to the extent that they are included in the national tax regulations. We follow with particular interest the developments in the Greek tax legislation in relation to abroad in order to be informed and able to provide quality services in the cross-border tax planning of our clients.