22.12.2010 EN Official Journal of the European Union L 339/1 REGULATION (EU) No 1210/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 133 thereof, Having regard to the proposal from the European Commission, Having regard to the opinion of the European Central Bank (1), Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting (3) requires credit institutions and, within the limits of their payment activity, other payment service providers and any other institutions engaged in the processing and distribution to the public of notes and coins to ensure that euro notes and coins which they have received and which they intend to put back into circulation are checked for authenticity and that counterfeits are detected. (2) Commission Recommendation 2005/504/EC of 27 May 2005 concerning authentication of euro coins and handling of euro coins unfit for circulation (4) provides for recommended practices regarding the authentication of euro coins and the handling of euro coins unfit for circulation. However, the lack of a mandatory common framework for coin authentication results in different practices among Member States and cannot, therefore, ensure uniform protection of the currency throughout the euro area. (3) To achieve effective and uniform authentication of euro coins throughout the euro area it is therefore necessary to introduce binding rules for the implementation of common procedures for the authentication of euro coins in circulation and for the implementation of control mechanisms of those procedures by the national authorities. (4) During the authentication process, genuine euro coins that are unfit for circulation should also be identified. The circulation of unfit coins makes them more difficult to use, particularly in coin-operated machines, and may create confusion for the users as to the authenticity of those coins. Unfit coins should be removed from circulation. Common binding rules for Member States are therefore necessary for handling and reimbursing euro coins unfit for circulation. (5) To coordinate the implementation of the authentication procedures, the details of testing and training requirements for coin authentication, the specifications for checking euro coins unfit for circulation and other practical implementation provisions should be further determined by the European Technical and Scientific Centre (ETSC) established by Commission Decision 2005/37/EC (5), after having consulted the counterfeit coin experts group referred to in that Decision. (6) To allow for a gradual adjustment of their current system of rules and practices to the provisions of this Regulation, the Member States should, during a transitional period until 31 December 2014, be able to provide for derogations regarding the types of coin-processing machines to be used for the authentication of euro coins and for the number of those machines to be checked annually. (7) Each national authority handling euro coins unfit for circulation should be able to apply a handling fee in accordance with this Regulation in order to meet the expenses related to the process. Handling fees should not be applied to the submissions of small quantities of euro coins unfit for circulation. Member States should be able to provide for exemptions from handling fees for persons which cooperate closely with the authorities in removing counterfeit or unfit coins from circulation. Member States should be able to accept bags or boxes of mixed counterfeit and unfit coins without applying a surcharge if this serves public interest. (8) It should be for each Member State to introduce applicable penalties for infringements, with a view to achieving equivalent authentication of euro coins and handling of euro coins unfit for circulation throughout the euro area. (9) Since the objective of this Regulation, namely effective and uniform authentication of euro coins throughout the euro area, cannot be sufficiently achieved by the Member States due to the differences in national practices and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS REGULATION: CHAPTER I SUBJECT MATTER AND DEFINITIONS Article 1 Subject matter This Regulation lays down procedures necessary for authentication of euro coins and for handling of euro coins unfit for circulation. Article 2 Definitions For the purpose of this Regulation the following definitions shall apply: (a) ‘authentication of euro coins’ means the process of verifying that euro coins are authentic and fit for circulation; (b) ‘euro coins unfit for circulation’ means euro coins that are genuine but that have been rejected during the authentication process or euro coins the appearance of which has been significantly altered; (c) ‘designated national authority’ means the Coin National Analysis Centre or another authority designated by the Member State concerned; (d) ‘institutions’ means the institutions referred to in the first subparagraph of Article 6(1) of Regulation (EC) No 1338/2001, excluding those referred to in the third indent thereof; (e) ‘CCEG’ (Counterfeit Coin Experts Group) means the counterfeit coin experts referred to in Decision 2005/37/EC. CHAPTER II AUTHENTICATION OF EURO COINS Article 3 Authentication of euro coins 1. Institutions shall ensure that euro coins which they have received and which they intend to put back into circulation are subject to an authentication procedure. They shall implement that obligation by means of: (a) coin-processing machines included in the list of coin-processing machines, referred to in Article 5(2); or (b) personnel trained in accordance with modalities defined by Member States. 2. Following authentication all suspected counterfeit coins and euro coins unfit for circulation shall be submitted to the designated national authority. 3. Counterfeit euro coins handed over to the competent national authorities in accordance with Article 6 of Regulation (EC) No 1338/2001 shall not be subject to handling or other fees. As regards euro coins unfit for circulation, Chapter III of this Regulation shall apply. Article 4 Testing requirement and coin-processing machines 1. When implementing Article 3(1)(a), institutions shall use only the types of coin-processing machines that have successfully passed a detection test carried out by the designated national authority or by the ETSC and that were listed on the website referred to in Article 5(2) at the time of their purchase. Institutions shall ensure that those machines are regularly adjusted to maintain their detection capability, taking into consideration the modifications introduced in the list referred to in Article 5(2). The detection test shall be designed to ensure that a coin-processing machine is capable of rejecting the known types of counterfeit euro coins and, in the process, euro coins unfit for circulation and all other coin-like objects that do not comply with the specifications of genuine euro coins. 2. For a transitional period until 31 December 2014, Member States may provide for specific derogations from the first sentence of paragraph 1 for coin-processing machines that were in use on 11 January 2011 and that have proved capable of detecting counterfeit euro coins, euro coins unfit for circulation and other coin-like objects that do not comply with the specifications of genuine euro coins, even if those machines are not included in the list referred to in Article 5(2). Such derogations shall be adopted after consulting the CCEG. Article 5 Adjustment of coin-processing machines 1. With a view to enabling manufacturers of coin-processing machines to obtain the specifications necessary for the adjustment of their machines to detect counterfeit euro coins, testing in accordance with Article 4 may be carried out at the designated national authority, the ETSC or, following bilateral agreement, on the manufacturer’s premises. Following the successful testing of a coin-processing machine, a detection test report summary shall be issued for the attention of the manufacturer of the machine and copied to the ETSC. 2. The Commission shall publish on its website a consolidated list of all coin-processing machines, for which a positive and valid detection test report summary is received or prepared by the ETSC. Article 6 Controls by Member States 1. Member States shall put in place the controls provided for in this Article. 2. Member States shall perform annual on-the-spot controls in institutions with a view to verifying, through detection tests, the proper functioning of a representative number of coin-processing machines used. Where personnel of the institutions is expected to check manually the authenticity of euro coins to be put back into circulation, Member States shall obtain an assurance from the institutions that their personnel are duly trained for that purpose. 3. The number of coin-processing machines to be checked annually in each Member State shall be such that the volume of euro coins processed by those machines during that year represents at least 25 % of the total cumulated net volume of coins issued by that Member State from the introduction of euro coins until the end of the previous year. The number of coin-processing machines to be checked shall be calculated on the basis of the volume of the three highest denominations of euro coins intended for circulation. Member States shall endeavour to ensure that coin-processing machines are checked on a rotating basis. 4. In the event that the number of coin-processing machines to be checked annually in accordance with paragraph 3 is higher than the number of machines operating in a particular Member State, all the coin-processing machines operating in that Member State shall be checked annually. 5. For a transitional period until 31 December 2014, Member States may decide, after notifying the Commission, that the number of coin-processing machines to be checked annually shall be such that the volume of euro coins processed by those machines during that year represents at least 10 % of the total cumulated net volume of coins issued by that Member State from the introduction of the euro coins until the end of the previous year. 6. As part of the annual controls, Member States shall monitor the capacity of institutions to authenticate euro coins on the basis of: (a) the existence of a written policy providing instructions relating either to the use of automatic coin-processing equipment or to manual sorting, as appropriate; (b) the allocation of appropriate human resources; (c) the existence of a written maintenance plan intended to keep coin-processing machines at their appropriate performance level; (d) the existence of written procedures for submitting counterfeit euro coins, euro coins unfit for circulation and other coin-like objects that do not comply with the specifications of genuine euro coins to the designated national authority; and (e) the existence of internal control procedures describing the modalities and the frequency of the controls to be carried out by institutions to ensure that their sorting centres and their personnel follow the instructions set out in this paragraph. 7. Where a Member State detects non-compliance with this Regulation, the institution concerned shall take the measures to ensure that the non-compliance is rectified promptly. Article 7 Technical provisions The Commission shall ensure that the ETSC define, within a reasonable time frame and after consulting the CCEG, the technical specifications for the detection test, and other practical implementation provisions, such as training practices, the period of validity of the detection test report summary, the information to be included in the list referred to in Article 5(2), the guidelines related to controls, checks and auditing by Member States, the rules for the rectification of non-compliance, and the relevant thresholds for accepting genuine coins. CHAPTER III HANDLING OF EURO COINS UNFIT FOR CIRCULATION Article 8 Withdrawal and reimbursement of euro coins unfit for circulation 1. Member States shall withdraw from circulation euro coins unfit for circulation. 2. Member States shall reimburse or replace euro coins that have become unfit due to long circulation or accident or that have been rejected during the authentication procedure for any other reason. Member States may refuse reimbursement of euro coins unfit for circulation which have been altered either deliberately or by a process that could be reasonably expected to have the effect of altering them, notwithstanding reimbursement of coins collected for charitable purposes, such as ‘fountain coins’. 3. Member States shall ensure that after withdrawal, euro coins unfit for circulation are destroyed by physical and permanent deformation, so that those coins cannot be put back into circulation or be submitted for reimbursement. Article 9 Handling fees 1. A handling fee of 5 % of the nominal value of the submitted euro coins unfit for circulation may be withheld from the reimbursement or the replacement of those euro coins. In the event that an entire bag or box of euro coins is checked in accordance with Article 11(2), the handling fee may be supplemented by an additional 15 % fee of the nominal value of the submitted euro coins. 2. Member States may provide for general or partial exemptions from handling fees in cases where the natural or legal persons submitting the euro coins cooperate closely and regularly with the designated national authority in withdrawing from circulation counterfeit euro coins or euro coins unfit for circulation or where such exemptions serve the public interest. 3. Transport and related costs shall be borne by the natural or legal person submitting the euro coins. 4. Without prejudice to the exemption provided for in paragraph 2, a maximum quantity of one kilogramme of euro coins unfit for circulation per denomination per natural or legal person submitting euro coins shall be exempted from the handling fee each year. If that limit is exceeded, all the coins submitted may be subject to a fee. 5. Where an individual submission of coins includes coins treated with chemical or other hazardous substances to such a degree that they may be deemed to harbour a health risk for handlers, the charges levied in accordance with paragraph 1 shall be supplemented by a further fee equivalent to 20 % of the nominal value of the euro coins submitted. Article 10 Packaging of euro coins unfit for circulation 1. The natural or legal person submitting euro coins for reimbursement or replacement shall sort them per denomination in standardised bags or boxes, as follows: (a) the bags or boxes shall comprise: (i) 500 coins for each of the denominations of EUR 2 and EUR 1, (ii) 1 000 coins for each of the denominations of EUR 0,50, EUR 0,20 and EUR 0,10, (iii) 2 000 coins for each of the denominations of EUR 0,05, EUR 0,02 and EUR 0,01, (iv) for smaller quantities, 100 coins of each denomination; (b) each bag or box shall bear the identifying details of the submitting natural or legal person, the value and the denomination contained, the weight, the date of packaging and the bag or box number; the submitting natural or legal person shall provide a packaging list with an overview of the bags or boxes submitted; where coins have been treated with chemical or other hazardous substances, the standard packaging units shall be accompanied by a written declaration specifying the exact substances which have been used; (c) where the total quantity of euro coins unfit for circulation is smaller than the requirements referred to in point (a), those euro coins shall be sorted by denomination and may be submitted in non-standard packaging. 2. By derogation from paragraph 1, Member States may maintain different packaging requirements as provided for under their national rules on 11 January 2011. Article 11 Checks of euro coins unfit for circulation 1. Member States may check submitted euro coins unfit for circulation as follows: (a) the quantity declared shall be checked by weighing each bag or box; (b) authenticity and visual appearance shall be checked on the basis of a sample of at least 10 % of the submission. 2. In the event that anomalies following the checks referred to in paragraph 1, or deviations from Article 10, are identified, the entire bag or box shall be checked. 3. Where the acceptance or processing of euro coins constitutes a health risk for handlers or a submission fails to meet packaging and labelling standards, Member States may refuse to accept such coins. Member States may provide for measures to be adopted with respect to the natural or legal persons that submitted coins referred to in the first subparagraph. CHAPTER IV FINAL PROVISIONS Article 12 Reporting, communication and evaluation 1. Member States shall submit annually reports to the Commission on their activities as regards authentication of euro coins. The information provided shall include the number of controls carried out pursuant to Article 6(2) and coin-processing machines checked, the test results, the volume of coins processed by those machines, the number of suspected counterfeit coins analysed and the number of euro coins unfit for circulation reimbursed, as well as details of any derogations provided for under Article 4(2) or Article 6(5). 2. To enable Member States to monitor the compliance of institutions with this Regulation, they shall, if so requested, provide the Member States at least annually with at least the following information: (a) the types and number of coin-processing machines used; (b) the location of each coin-processing machine; and (c) the volume of coins processed per coin-processing machine, per year and per denomination, for at least the three highest denominations. 3. Member States shall ensure that information concerning the authorities designated for reimbursement or replacement of euro coins and specific modalities, such as packaging requirements and fees, is made available on the appropriate websites and through the appropriate publications. 4. After having analysed the reports received from the Member States, the Commission shall present an annual report to the Economic and Financial Committee on developments and results concerning authentication of euro coins and euro coins unfit for circulation. 5. The Commission shall present a report to the European Parliament and to the Council by 30 June 2014 on the operation and effects of this Regulation. That report may be accompanied, if appropriate, by legislative proposals implementing in further detail, or amending, this Regulation, in particular with respect to Articles 6 and 8. Article 13 Penalties Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Article 14 Entry into force This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. It shall apply from 1 January 2012, with the exception of Chapter III, which shall apply from the date of entry into force of this Regulation. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. Done at Strasbourg, 15 December 2010. For the European Parliament The President J. BUZEK For the Council The President O. CHASTEL (1) OJ C 284, 25.11.2009, p. 6. (2) Position of the European Parliament of 7 September 2010 (not yet published in the Official Journal) and decision of the Council of 29 November 2010. (3) OJ L 181, 4.7.2001, p. 6. (4) OJ L 184, 15.7.2005, p. 60. (5) OJ L 19, 21.1.2005, p. 73.

Summary: Euro authenticity checks Euro authenticity checks SUMMARY OF: Regulation (EU) No 1210/2010 — authentication of euro coins and handling of euro coins unfit for circulation WHAT IS THE AIM OF THIS REGULATION? It sets out the procedures and methods for the authentication of euro coins and the handling of coins that are unfit for circulation. It complements Regulation (EC) No 1338/2001 — System for protecting the euro against counterfeiting, which requires banks and other payment service providers to ensure that the euro notes and coins they receive and intend to put back into circulation are tested for authenticity in order to detect potential counterfeiting. KEY POINTS Testing The regulation requires credit institutions to ensure that they authenticate euro coins either by means of appropriate coin-processing equipment or manually by staff trained specifically for the purpose. Any coin-processing equipment used must have already successfully passed a detection test carried out by the competent national authority or by the Coin National Analysis Centre in each country of the euro area. On-the-spot controls Countries in the euro area must perform annual on-the-spot controls in institutions to check, by means of detection tests, that a representative number of coin-processing machines function correctly. The number of coin-processing machines to be checked annually in each country must be such that the volume of euro coins processed by those machines during that year represents at least 25 % of the total cumulated net volume of coins issued by that country. This must be from the date of the introduction of euro coins until the end of the previous year. Withdrawal and reimbursement of euro coins unfit for circulation EU countries are required to remove from circulation not only counterfeit coins but also any genuine euro coins that have become unfit due to prolonged circulation, to an accident or to any other reason. EU countries may refuse the reimbursement to individuals of euro coins that are unfit for circulation and that have been altered either deliberately or by a process that could be reasonably expected to have the effect of altering them. Each national authority handling euro coins unfit for circulation may levy a handling fee on legal or natural persons in order to meet the expenses related to the process. Handling fees should not be applied to submissions of small quantities of euro coins unfit for circulation. The regulation sets out rules for the packaging of euro coins unfit for circulation, which must be sorted per denomination* in standardised bags or boxes. Reporting and evaluation Each year, EU countries must submit reports to the European Commission on their experience of authenticating euro coins. To monitor institutions’ compliance, EU countries may request them to provide the following information: the types and number of coin-processing machines used; the location of each coin-processing machine; the volume of coins processed per coin-processing machine, per year and per denomination, for at least the three highest denominations. As laid down in the regulation, in 2017 the Commission presented to the European Parliament and to the Council the latest report on the operation and effects of the regulation. FROM WHEN DOES THE REGULATION APPLY? It has applied since 1 January 2012, with the exception of its Chapter III (handling of euro coins unfit for circulation), which has applied since 11 January 2011. BACKGROUND For more information, see: ‘Anti-counterfeiting measures’ (European Commission). KEY TERMS Denominations: euro coins are minted in denominations of 1, 2, 5, 10, 20 and 50 cents, and 1 and 2 euros. MAIN DOCUMENT Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation (OJ L 339, 22.12.2010, pp. 1-5) RELATED DOCUMENTS Report from the Commission to the Economic and Financial Committee under Article 12(4) of Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation (C(2017) 6734 final, 12.10.2017) Regulation (EU) No 651/2012 of the European Parliament and of the Council of 4 July 2012 on the issuance of euro coins (OJ L 201, 27.7.2012, pp. 135-137) Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting (OJ L 181, 4.7.2001, pp. 6-10) Successive amendments to Regulation (EC) No 1338/2001 have been incorporated into the original document. This consolidated version is of documentary value only last update 06.12.2017


26.10.2010 EN Official Journal of the European Union L 280/1 DIRECTIVE 2010/64/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 October 2010 on the right to interpretation and translation in criminal proceedings THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of the second subparagraph of Article 82(2) thereof, Having regard to the initiative of the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden (1), After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice. According to the Presidency Conclusions of the European Council in Tampere of 15 and 16 October 1999, and in particular point 33 thereof, the principle of mutual recognition of judgments and other decisions of judicial authorities should become the cornerstone of judicial cooperation in civil and criminal matters within the Union because enhanced mutual recognition and the necessary approximation of legislation would facilitate cooperation between competent authorities and the judicial protection of individual rights. (2) On 29 November 2000, the Council, in accordance with the Tampere Conclusions, adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters (3). The introduction to the programme states that mutual recognition is ‘designed to strengthen cooperation between Member States but also to enhance the protection of individual rights’. (3) The implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States have trust in each other’s criminal justice systems. The extent of mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspected or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition. (4) Mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied. (5) Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ECHR) and Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter the Charter) enshrine the right to a fair trial. Article 48(2) of the Charter guarantees respect for the right of defence. This Directive respects those rights and should be implemented accordingly. (6) Although all the Member States are party to the ECHR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States. (7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter. (8) Article 82(2) of the Treaty on the Functioning of the European Union provides for the establishment of minimum rules applicable in the Member States so as to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. Point (b) of the second subparagraph of Article 82(2) refers to ‘the rights of individuals in criminal procedure’ as one of the areas in which minimum rules may be established. (9) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the fields of interpretation and translation in criminal proceedings. (10) On 30 November 2009, the Council adopted a resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (4). Taking a step-by-step approach, the Roadmap called for the adoption of measures regarding the right to translation and interpretation (measure A), the right to information on rights and information about the charges (measure B), the right to legal advice and legal aid (measure C), the right to communication with relatives, employers and consular authorities (measure D), and special safeguards for suspected or accused persons who are vulnerable (measure E). (11) In the Stockholm programme, adopted on 10 December 2009, the European Council welcomed the Roadmap and made it part of the Stockholm programme (point 2.4). The European Council underlined the non-exhaustive character of the Roadmap, by inviting the Commission to examine further elements of minimum procedural rights for suspected and accused persons, and to assess whether other issues, for instance the presumption of innocence, need to be addressed, in order to promote better cooperation in that area. (12) This Directive relates to measure A of the Roadmap. It lays down common minimum rules to be applied in the fields of interpretation and translation in criminal proceedings with a view to enhancing mutual trust among Member States. (13) This Directive draws on the Commission proposal for a Council Framework Decision on the right to interpretation and to translation in criminal proceedings of 8 July 2009, and on the Commission proposal for a Directive of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings of 9 March 2010. (14) The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial. (15) The rights provided for in this Directive should also apply, as necessary accompanying measures, to the execution of a European arrest warrant (5) within the limits provided for by this Directive. Executing Members States should provide, and bear the costs of, interpretation and translation for the benefit of the requested persons who do not speak or understand the language of the proceedings. (16) In some Member States an authority other than a court having jurisdiction in criminal matters has competence for imposing sanctions in relation to relatively minor offences. That may be the case, for example, in relation to traffic offences which are committed on a large scale and which might be established following a traffic control. In such situations, it would be unreasonable to require that the competent authority ensure all the rights under this Directive. Where the law of a Member State provides for the imposition of a sanction regarding minor offences by such an authority and there is a right of appeal to a court having jurisdiction in criminal matters, this Directive should therefore apply only to the proceedings before that court following such an appeal. (17) This Directive should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings. (18) Interpretation for the benefit of the suspected or accused persons should be provided without delay. However, where a certain period of time elapses before interpretation is provided, that should not constitute an infringement of the requirement that interpretation be provided without delay, as long as that period of time is reasonable in the circumstances. (19) Communication between suspected or accused persons and their legal counsel should be interpreted in accordance with this Directive. Suspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and make their legal counsel aware of any facts that should be put forward in their defence. (20) For the purposes of the preparation of the defence, communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings, or with the lodging of an appeal or other procedural applications, such as an application for bail, should be interpreted where necessary in order to safeguard the fairness of the proceedings. (21) Member States should ensure that there is a procedure or mechanism in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. Such procedure or mechanism implies that competent authorities verify in any appropriate manner, including by consulting the suspected or accused persons concerned, whether they speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. (22) Interpretation and translation under this Directive should be provided in the native language of the suspected or accused persons or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings. (23) The respect for the right to interpretation and translation contained in this Directive should not compromise any other procedural right provided under national law. (24) Member States should ensure that control can be exercised over the adequacy of the interpretation and translation provided when the competent authorities have been put on notice in a given case. (25) The suspected or accused persons or the persons subject to proceedings for the execution of a European arrest warrant should have the right to challenge the finding that there is no need for interpretation, in accordance with procedures in national law. That right does not entail the obligation for Member States to provide for a separate mechanism or complaint procedure in which such finding may be challenged and should not prejudice the time limits applicable to the execution of a European arrest warrant. (26) When the quality of the interpretation is considered insufficient to ensure the right to a fair trial, the competent authorities should be able to replace the appointed interpreter. (27) The duty of care towards suspected or accused persons who are in a potentially weak position, in particular because of any physical impairments which affect their ability to communicate effectively, underpins a fair administration of justice. The prosecution, law enforcement and judicial authorities should therefore ensure that such persons are able to exercise effectively the rights provided for in this Directive, for example by taking into account any potential vulnerability that affects their ability to follow the proceedings and to make themselves understood, and by taking appropriate steps to ensure those rights are guaranteed. (28) When using videoconferencing for the purpose of remote interpretation, the competent authorities should be able to rely on the tools that are being developed in the context of European e-Justice (e.g. information on courts with videoconferencing equipment or manuals). (29) This Directive should be evaluated in the light of the practical experience gained. If appropriate, it should be amended so as to improve the safeguards which it lays down. (30) Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment. It is for the competent authorities of the Member States to decide, on their own motion or upon a request of suspected or accused persons or of their legal counsel, which other documents are essential to safeguard the fairness of the proceedings and should therefore be translated as well. (31) Member States should facilitate access to national databases of legal translators and interpreters where such databases exist. In that context, particular attention should be paid to the aim of providing access to existing databases through the e-Justice portal, as planned in the multiannual European e-Justice action plan 2009-2013 of 27 November 2008 (6). (32) This Directive should set minimum rules. Member States should be able to extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR or the Charter as interpreted in the case-law of the European Court of Human Rights or the Court of Justice of the European Union. (33) The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union. (34) Since the objective of this Directive, namely establishing common minimum rules, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (35) In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States have notified their wish to take part in the adoption and application of this Directive. (36) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject matter and scope 1. This Directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of a European arrest warrant. 2. The right referred to in paragraph 1 shall apply to persons from the time that they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal. 3. Where the law of a Member State provides for the imposition of a sanction regarding minor offences by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed to such a court, this Directive shall apply only to the proceedings before that court following such an appeal. 4. This Directive does not affect national law concerning the presence of legal counsel during any stage of the criminal proceedings, nor does it affect national law concerning the right of access of a suspected or accused person to documents in criminal proceedings. Article 2 Right to interpretation 1. Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. 2. Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications. 3. The right to interpretation under paragraphs 1 and 2 includes appropriate assistance for persons with hearing or speech impediments. 4. Member States shall ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the possibility to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings. 6. Where appropriate, communication technology such as videoconferencing, telephone or the Internet may be used, unless the physical presence of the interpreter is required in order to safeguard the fairness of the proceedings. 7. In proceedings for the execution of a European arrest warrant, the executing Member State shall ensure that its competent authorities provide persons subject to such proceedings who do not speak or understand the language of the proceedings with interpretation in accordance with this Article. 8. Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence. Article 3 Right to translation of essential documents 1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings. 2. Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment. 3. The competent authorities shall, in any given case, decide whether any other document is essential. Suspected or accused persons or their legal counsel may submit a reasoned request to that effect. 4. There shall be no requirement to translate passages of essential documents which are not relevant for the purposes of enabling suspected or accused persons to have knowledge of the case against them. 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for the translation of documents or passages thereof and, when a translation has been provided, the possibility to complain that the quality of the translation is not sufficient to safeguard the fairness of the proceedings. 6. In proceedings for the execution of a European arrest warrant, the executing Member State shall ensure that its competent authorities provide any person subject to such proceedings who does not understand the language in which the European arrest warrant is drawn up, or into which it has been translated by the issuing Member State, with a written translation of that document. 7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings. 8. Any waiver of the right to translation of documents referred to in this Article shall be subject to the requirements that suspected or accused persons have received prior legal advice or have otherwise obtained full knowledge of the consequences of such a waiver, and that the waiver was unequivocal and given voluntarily. 9. Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence. Article 4 Costs of interpretation and translation Member States shall meet the costs of interpretation and translation resulting from the application of Articles 2 and 3, irrespective of the outcome of the proceedings. Article 5 Quality of the interpretation and translation 1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article 3(9). 2. In order to promote the adequacy of interpretation and translation and efficient access thereto, Member States shall endeavour to establish a register or registers of independent translators and interpreters who are appropriately qualified. Once established, such register or registers shall, where appropriate, be made available to legal counsel and relevant authorities. 3. Member States shall ensure that interpreters and translators be required to observe confidentiality regarding interpretation and translation provided under this Directive. Article 6 Training Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States shall request those responsible for the training of judges, prosecutors and judicial staff involved in criminal proceedings to pay special attention to the particularities of communicating with the assistance of an interpreter so as to ensure efficient and effective communication. Article 7 Record-keeping Member States shall ensure that when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter pursuant to Article 2, when an oral translation or oral summary of essential documents has been provided in the presence of such an authority pursuant to Article 3(7), or when a person has waived the right to translation pursuant to Article 3(8), it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned. Article 8 Non-regression Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union, other relevant provisions of international law or the law of any Member State which provides a higher level of protection. Article 9 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 27 October 2013. 2. Member States shall transmit the text of those measures to the Commission. 3. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. Article 10 Report The Commission shall, by 27 October 2014, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, accompanied, if necessary, by legislative proposals. Article 11 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 12 Addressees This Directive is addressed to the Member States in accordance with the Treaties. Done at Strasbourg, 20 October 2010. For the European Parliament The President J. BUZEK For the Council The President O. CHASTEL (1) OJ C 69, 18.3.2010, p. 1. (2) Position of the European Parliament of 16 June 2010 (not yet published in the Official Journal) and decision of the Council of 7 October 2010. (3) OJ C 12, 15.1.2001, p. 10. (4) OJ C 295, 4.12.2009, p. 1. (5) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1). (6) OJ C 75, 31.3.2009, p. 1.

Summary: Fair trial: suspects’ right to interpretation and translation in criminal proceedings Fair trial: suspects’ right to interpretation and translation in criminal proceedings SUMMARY OF: Directive 2010/64/EU — the right to interpretation and translation in criminal proceedings SUMMARY WHAT DOES THIS DIRECTIVE DO? — It establishes minimum EU-wide rules on the right to interpretation and translation in criminal proceedings and in proceedings for the execution of the European Arrest Warrant. — It is the first step in series of measures to establish minimum rules for procedural rights across the EU in accordance with a 2009 roadmap. It was followed in 2012 by the directive on the right to information in criminal proceedings. KEY POINTS Right to interpretation Interpretation must be provided free of charge to suspected or accused persons who do not speak or understand the language of the criminal proceedings including during: — police questioning — essential meetings between client and lawyer — all court hearings and any necessary interim hearings. Interpretation via videoconference, telephone or internet can be used if the physical presence of the interpreter is not required to ensure fairness. Right to translation of essential documents Suspected or accused persons who do not understand the language of the proceedings must be provided with a written translation of documents that are essential for their defence. This includes: — any decision depriving a person of his liberty — any charge or indictment — any judgment. The competent authorities may decide to translate any other documents on a case-by-case basis. The suspected or accused persons or their legal counsel may also request the translation of other essential documents. In proceedings for the execution of a European Arrest Warrant, persons concerned must be provided with interpretation and with a written translation of the warrant, if necessary. Quality of interpretation and translation Translation and interpretation must be of sufficient quality to allow the persons concerned to understand the case against them and to exercise their right of defence. To this end, EU countries are required to set up a register of independent and qualified translators and interpreters, which should be available to legal counsels and relevant authorities. WHEN DOES THE DIRECTIVE ENTER INTO FORCE? On 15 November 2010. It was to be transposed into EU countries’ national law by 27 October 2013. BACKGROUND Right of the accused to interpretation and translation. ACT Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, pp. 1-7) last update 30.10.2015


29.12.2010 EN Official Journal of the European Union L 343/10 COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 81(3) thereof, Having regard to Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (1), Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Parliament, Having regard to the opinion of the European Economic and Social Committee, Acting in accordance with a special legislative procedure, Whereas: (1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union must adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market. (2) Pursuant to Article 81 of the Treaty on the Functioning of the European Union, those measures are to include measures aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws. (3) On 14 March 2005 the Commission adopted a Green Paper on applicable law and jurisdiction in divorce matters. The Green Paper launched a wide-ranging public consultation on possible solutions to the problems that may arise under the current situation. (4) On 17 July 2006 the Commission proposed a Regulation amending Council Regulation (EC) No 2201/2003 (2) as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters. (5) At its meeting in Luxembourg on 5 and 6 June 2008, the Council concluded that there was a lack of unanimity on the proposal and that there were insurmountable difficulties that made unanimity impossible both then and in the near future. It established that the proposal’s objectives could not be attained within a reasonable period by applying the relevant provisions of the Treaties. (6) Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia subsequently addressed a request to the Commission indicating that they intended to establish enhanced cooperation between themselves in the area of applicable law in matrimonial matters. On 3 March 2010, Greece withdrew its request. (7) On 12 July 2010 the Council adopted Decision 2010/405/EU authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. (8) According to Article 328(1) of the Treaty on the Functioning of the European Union, when enhanced cooperation is being established, it is to be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It is also to be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions. The Commission and the Member States participating in enhanced cooperation shall ensure that they promote participation by as many Member States as possible. This Regulation should be binding in its entirety and directly applicable only in the participating Member States in accordance with the Treaties. (9) This Regulation should create a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests. (10) The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-laws rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions such as legal capacity and the validity of the marriage, and matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures should be determined by the conflict-of-laws rules applicable in the participating Member State concerned. (11) In order to clearly delimit the territorial scope of this Regulation, the Member States participating in the enhanced cooperation should be specified. (12) This Regulation should be universal, i.e. it should be possible for its uniform conflict-of-laws rules to designate the law of a participating Member State, the law of a non-participating Member State or the law of a State which is not a member of the European Union. (13) This Regulation should apply irrespective of the nature of the court or tribunal seized. Where applicable, a court should be deemed to be seized in accordance with Regulation (EC) No 2201/2003. (14) In order to allow the spouses to choose an applicable law with which they have a close connection or, in the absence of such choice, in order that that law might apply to their divorce or legal separation, the law in question should apply even if it is not that of a participating Member State. Where the law of another Member State is designated, the network created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (3), could play a part in assisting the courts with regard to the content of foreign law. (15) Increasing the mobility of citizens calls for more flexibility and greater legal certainty. In order to achieve that objective, this Regulation should enhance the parties’ autonomy in the areas of divorce and legal separation by giving them a limited possibility to choose the law applicable to their divorce or legal separation. (16) Spouses should be able to choose the law of a country with which they have a special connection or the law of the forum as the law applicable to divorce and legal separation. The law chosen by the spouses must be consonant with the fundamental rights recognised by the Treaties and the Charter of Fundamental Rights of the European Union. (17) Before designating the applicable law, it is important for spouses to have access to up-to-date information concerning the essential aspects of national and Union law and of the procedures governing divorce and legal separation. To guarantee such access to appropriate, good-quality information, the Commission regularly updates it in the Internet-based public information system set up by Council Decision 2001/470/EC. (18) The informed choice of both spouses is a basic principle of this Regulation. Each spouse should know exactly what are the legal and social implications of the choice of applicable law. The possibility of choosing the applicable law by common agreement should be without prejudice to the rights of, and equal opportunities for, the two spouses. Hence judges in the participating Member States should be aware of the importance of an informed choice on the part of the two spouses concerning the legal implications of the choice-of-law agreement concluded. (19) Rules on material and formal validity should be defined so that the informed choice of the spouses is facilitated and that their consent is respected with a view to ensuring legal certainty as well as better access to justice. As far as formal validity is concerned, certain safeguards should be introduced to ensure that spouses are aware of the implications of their choice. The agreement on the choice of applicable law should at least be expressed in writing, dated and signed by both parties. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal rules, those rules should be complied with. For example, such additional formal rules may exist in a participating Member State where the agreement is inserted in a marriage contract. If, at the time the agreement is concluded, the spouses are habitually resident in different participating Member States which lay down different formal rules, compliance with the formal rules of one of these States would suffice. If, at the time the agreement is concluded, only one of the spouses is habitually resident in a participating Member State which lays down additional formal rules, these rules should be complied with. (20) An agreement designating the applicable law should be able to be concluded and modified at the latest at the time the court is seized, and even during the course of the proceeding if the law of the forum so provides. In that event, it should be sufficient for such designation to be recorded in court in accordance with the law of the forum. (21) Where no applicable law is chosen, and with a view to guaranteeing legal certainty and predictability and preventing a situation from arising in which one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he considers more favourable to his own interests, this Regulation should introduce harmonised conflict-of-laws rules on the basis of a scale of successive connecting factors based on the existence of a close connection between the spouses and the law concerned. Such connecting factors should be chosen so as to ensure that proceedings relating to divorce or legal separation are governed by a law with which the spouses have a close connection. (22) Where this Regulation refers to nationality as a connecting factor for the application of the law of a State, the question of how to deal with cases of multiple nationality should be left to national law, in full observance of the general principles of the European Union. (23) If the court is seized in order to convert a legal separation into divorce, and where the parties have not made any choice as to the law applicable, the law which applied to the legal separation should also apply to the divorce. Such continuity would promote predictability for the parties and increase legal certainty. If the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the divorce should be governed by the conflict-of-laws rules which apply in the absence of a choice by the parties. This should not prevent the spouses from seeking divorce on the basis of other rules in this Regulation. (24) In certain situations, such as where the applicable law makes no provision for divorce or where it does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the court seized should nevertheless apply. This, however, should be without prejudice to the public policy clause. (25) Considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of a provision of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public policy exception in order to disregard a provision of the law of another State when to do so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Article 21 thereof, which prohibits all forms of discrimination. (26) Where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not provide for divorce, this should be interpreted to mean that the law of this Member State does not have the institute of divorce. In such a case, the court should not be obliged to pronounce a divorce by virtue of this Regulation. Where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not deem the marriage in question valid for the purposes of divorce proceedings, this should be interpreted to mean, inter alia, that such a marriage does not exist in the law of that Member State. In such a case, the court should not be obliged to pronounce a divorce or a legal separation by virtue of this Regulation. (27) Since there are States and participating Member States in which two or more systems of law or sets of rules concerning matters governed by this Regulation coexist, there should be a provision governing the extent to which this Regulation applies in the different territorial units of those States and participating Member States or to different categories of persons of those States and participating Member States. (28) In the absence of rules designating the applicable law, parties choosing the law of the State of the nationality of one of them should at the same time indicate which territorial unit’s law they have agreed upon in case the State whose law is chosen comprises several territorial units each of which has its own system of law or a set of rules in respect of divorce. (29) Since the objectives of this Regulation, namely the enhancement of legal certainty, predictability and flexibility in international matrimonial proceedings and hence the facilitation of the free movement of persons within the Union, cannot be sufficiently achieved by the Member States and can therefore, by reasons of the scale and effects of this Regulation be better achieved at Union level, the Union may adopt measures, by means of enhanced cooperation where appropriate, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (30) This Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, and in particular by Article 21 thereof, which states that any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. This Regulation should be applied by the courts of the participating Member States in observance of those rights and principles, HAS ADOPTED THIS REGULATION: CHAPTER I SCOPE, RELATION WITH REGULATION (EC) No 2201/2003, DEFINITIONS AND UNIVERSAL APPLICATION Article 1 Scope 1. This Regulation shall apply, in situations involving a conflict of laws, to divorce and legal separation. 2. This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings: (a) the legal capacity of natural persons; (b) the existence, validity or recognition of a marriage; (c) the annulment of a marriage; (d) the name of the spouses; (e) the property consequences of the marriage; (f) parental responsibility; (g) maintenance obligations; (h) trusts or successions. Article 2 Relation with Regulation (EC) No 2201/2003 This Regulation shall not affect the application of Regulation (EC) No 2201/2003. Article 3 Definitions For the purposes of this Regulation: 1. ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Decision 2010/405/EU, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union; 2. the term ‘court’ shall cover all the authorities in the participating Member States with jurisdiction in the matters falling within the scope of this Regulation. Article 4 Universal application The law designated by this Regulation shall apply whether or not it is the law of a participating Member State. CHAPTER II UNIFORM RULES ON THE LAW APPLICABLE TO DIVORCE AND LEGAL SEPARATION Article 5 Choice of applicable law by the parties 1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum. Article 6 Consent and material validity 1. The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it under this Regulation if the agreement or term were valid. 2. Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seized if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1. Article 7 Formal validity 1. The agreement referred to in Article 5(1) and (2), shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply. 3. If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply. Article 8 Applicable law in the absence of a choice by the parties In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seized; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that (c) of which both spouses are nationals at the time the court is seized; or, failing that (d) where the court is seized. Article 9 Conversion of legal separation into divorce 1. Where legal separation is converted into divorce, the law applicable to divorce shall be the law applied to the legal separation, unless the parties have agreed otherwise in accordance with Article 5. 2. However, if the law applied to the legal separation does not provide for the conversion of legal separation into divorce, Article 8 shall apply, unless the parties have agreed otherwise in accordance with Article 5. Article 10 Application of the law of the forum Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply. Article 11 Exclusion of renvoi Where this Regulation provides for the application of the law of a State, it refers to the rules of law in force in that State other than its rules of private international law. Article 12 Public policy Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum. Article 13 Differences in national law Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation. Article 14 States with two or more legal systems — territorial conflicts of laws Where a State comprises several territorial units each of which has its own system of law or a set of rules concerning matters governed by this Regulation: (a) any reference to the law of such State shall be construed, for the purposes of determining the law applicable under this Regulation, as referring to the law in force in the relevant territorial unit; (b) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit; (c) any reference to nationality shall refer to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the parties or, in absence of choice, to the territorial unit with which the spouse or spouses has or have the closest connection. Article 15 States with two or more legal systems — 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 concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as referring to the legal system 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 spouse or spouses has or have the closest connection applies. Article 16 Non-application of this Regulation to internal conflicts of laws A participating Member State in which different systems of law or sets of rules apply to matters governed by this Regulation shall not be required to apply this Regulation to conflicts of laws arising solely between such different systems of law or sets of rules. CHAPTER III OTHER PROVISIONS Article 17 Information to be provided by participating Member States 1. By 21 September 2011 the participating Member States shall communicate to the Commission their national provisions, if any, concerning: (a) the formal requirements applicable to agreements on the choice of applicable law pursuant to Article 7(2) to (4); and (b) the possibility of designating the applicable law in accordance with Article 5(3). The participating Member States shall inform the Commission of any subsequent changes to these provisions. 2. The Commission shall make all information communicated in accordance with paragraph 1 publicly available through appropriate means, in particular through the website of the European Judicial Network in civil and commercial matters. Article 18 Transitional provisions 1. This Regulation shall apply only to legal proceedings instituted and to agreements of the kind referred to in Article 5 concluded as from 21 June 2012. However, effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Articles 6 and 7. 2. This Regulation shall be without prejudice to agreements on the choice of applicable law concluded in accordance with the law of a participating Member State whose court is seized before 21 June 2012. Article 19 Relationship with existing international conventions 1. Without prejudice to the obligations of the participating Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not affect the application of international conventions to which one or more participating Member States are party at the time when this Regulation is adopted or when the decision pursuant to the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union is adopted and which lay down conflict-of-laws rules relating to divorce or separation. 2. However, this Regulation shall, as between participating Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation. Article 20 Review clause 1. By 31 December 2015, and every 5 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposals to adapt this Regulation. 2. To that end, the participating Member States shall communicate to the Commission the relevant information on the application of this Regulation by their courts. CHAPTER IV FINAL PROVISIONS Article 21 Entry into force and date of application This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union. It shall apply from 21 June 2012, with the exception of Article 17, which shall apply from 21 June 2011. For those participating Member States which participate in enhanced cooperation by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned. This Regulation shall be binding in its entirety and directly applicable in the participating Member States in accordance with the Treaties. Done at Brussels, 20 December 2010. For the Council The President J. SCHAUVLIEGE (1) OJ L 189, 22.7.2010, p. 12. (2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (OJ L 338, 23.12.2003, p. 1). (3) OJ L 174, 27.6.2001, p. 25.

Summary: Law applicable to divorce and legal separation Law applicable to divorce and legal separation SUMMARY OF: Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation WHAT IS THE AIM OF THE REGULATION? It establishes a single set of rules to determine which national law should apply to proceedings for divorce or legal separation involving spouses who are of different nationality, live in a country different from their country of nationality or no longer live in the same European Union (EU) Member State. It complements Regulation (EC) No 2201/2003 (see summary), which sets out rules to determine in which court an application for divorce or legal separation must be filed. KEY POINTS Participating countries The regulation applies to 17 Member States which participate in enhanced cooperation on this issue: Belgium, Bulgaria, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, and Slovenia. Other Member States can join at any time. When does the regulation apply? It applies where there is a conflict of national laws in cases of divorce and legal separation, i.e. where several national laws could apply to the same divorce or legal separation (for example, the national law of the country of the spouses' nationality, or the national law of the country of their main place of residence). It does not apply to questions of: the legal capacity of natural persons; the existence, validity or recognition of a marriage; the annulment of a marriage; the name of the spouses; the property consequences of the marriage; parental responsibility; maintenance obligations; trusts or successions. Choice of law Spouses may make a formal agreement choosing which national law will apply to their divorce or legal separation as long as it is either the law of: the country where the spouses have their main place of residence at the time the agreement is concluded; or the country where the spouses had their last main residence, in so far as one of them still resides there at the time the agreement is concluded; or the country of nationality of either spouse at the time the agreement is concluded; or the country in which the case is brought. An agreement between the spouses may be made and changed at any time up to when the case comes before the court. Where no choice of law is made If the spouses do not choose the law that should apply to their divorce or legal separation, the case will be subject to the law of the country: 1.where the spouses have their main residence at the time the case comes before the court; or, if not 2.where the spouses had their last main residence, provided that the period of residence did not end more than 1 year before the case came before the court, in so far as one of the spouses still lives in that country at the time the case comes to court; or, if not 3.of which both spouses are nationals at the time the case is brought before the court; or, if not 4.in which the case is brought. If the national law applicable to the case does not include a divorce law or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the country in which the case is brought will apply. FROM WHEN DOES THE REGULATION APPLY? It has applied since 21 June 2012. BACKGROUND Two other regulations set out rules to establish the applicable law where there is a conflict of national laws. Regulation (EC) No 593/2008 (see summary) applies to contractual obligations, whilst Regulation (EC) No 864/2007 (see summary) covers non-contractual obligations excluding family relationships and the liability of a state. Regulation No 1259/2010, which contains rules on the applicable law to divorce and legal separation, was adopted through enhanced cooperation to complement Regulation (EC) No 2201/2003, which contains rules on jurisdiction and recognition and enforcement in respect of divorce and legal separation (as well as on parental responsibility matters). For further information, see: Divorce and separation — Information on divorce law applicable in cases of international couples in the EU (European Commission) Divorce and legal separation (YourEurope). MAIN DOCUMENT Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343, 29.12.2010, pp. 10-16) RELATED DOCUMENTS Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, pp. 1-115) Commission Decision (EU) 2016/1366 of 10 August 2016 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 216, 11.8.2016, pp. 23-25) Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41-42) Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18-19) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, pp. 1-29) Successive amendments and corrections to Regulation (EC) No 2201/2003 have been incorporated in the basic text. This consolidated version is for reference purposes only. last update 03.06.2021