The regulatory set of instruments that make up the European Union's civil justice system was increased last July with three new regulations. Two of them, which have been under negotiation for a long time, required the enhanced cooperation procedure for their approval. These are Regulations 2016/1103 and 2016/1104, both of 24 June, published on 8 July and concerning jurisdiction, applicable law, recognition of decisions on matrimonial property regimes and the property consequences of registered partnerships, respectively. Regulation (EU) 2016/1191 of 6 July, published on 26 July, is the Regulation on the simplification of the filing of certain public documents - related to the Civil Registry - which modifies the controversial IMI system by extending the cases of verification of authorities of origin by a body or central authority of that State.

The first two will apply from 29 January 2019 and the third from 16 February 2019, with the States having to provide the necessary information for their implementation beforehand. Implementing regulations will also be approved.

The enhanced cooperation in the two parallel Regulations will be carried out, for the time being, between seventeen Member States, including Spain. The Regulations, which maintain, as far as possible, an equality of solutions, directs the judicial competence, in the case of liquidation due to death, to the same Judge that would correspond in R. 650/2012, with the consequent simplification in the application of the latter, while for separation, divorce or annulment, R. 2201/2003 (Brussels II bis) will apply. It is known that the Rome III Regulation (R. 1259/2010), also approved by means of the enhanced cooperation procedure, refers, however, only to separation and divorce, not to annulment, in terms of applicable law, so that the relationship between the two in this matter requires distinguishing the different levels, with the consequent difficulty in establishing strictly personal effects in the annulment of the relationship. In any event, the applicable law is universal; for all assets, wherever they may be, and without second-degree renvoi. Its determination, in preference to the presumptive rules it lays down, may be the result of an agreement which may in turn be modified to a limited extent for the future, if the change is made in accordance with the law of the common habitual residence or of the common nationality of the spouses. Such agreements must comply with the formalities required in the place of habitual residence. The Regulation wrongly translates choice of law agreements into Spanish as follows marriage contractsThis is not always true, since the agreement to which the European rule refers - determination of the applicable law for the future - does not require the special requirements of modification and formality sometimes established in Spanish civil law. This will lead to confusion in the application of the rule. The effect vis-à-vis third parties will also require, in accordance with Spanish state law, registration in the Civil Register, with much greater clarity when Law 21/2011 enters into force, in principle, on 30 June 2017.

When Regulation 1103/2016 is applied, Articles 9.2 - partially, insofar as it includes personal effects - and 9.3 of the Civil Code will be rendered ineffective for cross-border cases. The protection of the habitual residence (Recital 53 and Art. 30) will, however, be governed by the law of the forum - which is important in the case of nullity and death.

The application of the Regulation in multi-legislative States with their own regulations will entail respect for the civil neighbourhood, in much more complex terms than in R. 650/2012. Article 16 of the Civil Code being the determining rule, in the case of Spaniards, the civil neighbourhood that corresponds to them will be applied and thus the rules of the designated territorial unit, in accordance with the rules of Regulation 1103/2016.

Much more complex will be the territorial application of Regulation 1104/2016, relating to registered partnerships, insofar as there is no material state regulation and various territorial units have their own regulations - let us remember that the TC recently annulled that of the Valencian Community. The difficulty lies in the fact that several regulations, such as the Balearic or Basque laws, refer the registration of the couple in that territory to the civil residence of at least one member of the couple, which is not possible for those who are foreign residents. This referral is based on the impossibility of civilly regulating the formal requirement with civil scope for those who are not subject to the autonomous regulations due to their neighbourhood. The resulting non-compliance with European law will require the State to impose an exception on the Communities concerned, in that it is not possible to impose a registration of the couple in a European country in order simply to be recognised by the Community in question. The lack of regulations in this respect in Spanish inter-regional law also means that it is impossible to comply with Art. 33, so it must be understood that neighbourhood is not relevant in this case, and that they are governed directly by the law of the Autonomous Community in which they are resident.

R. 2016/1131, for its part, abolishes the apostille between Member States in the matters it regulates. It should be recalled that there is no apostille for documents and decisions governed by the European Regulations, not even for ancillary documents (e.g. power of attorney for legal proceedings). The Hague Convention of 5 October 1961 is maintained for the remaining matters, especially in relation to representation of companies and title deeds, and in respect of third States. The operation of the IMI system is complex, but in view of the automatism of the fields and the instantaneous translation provided for in the annexes, it will certainly make life easier for citizens.

It should be recalled at this point that Spain is still awaiting the application of the electronic apostille to notarial documents, an issue that should not be postponed.