Brussels IIbis - Commentary 9783504385606

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European Commentaries on Private International Law ECPIL Commentary Volume IV Brussels IIbis Regulation

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sellier european law publishers

European Commentaries on Private International Law

ECPIL

Commentary Volume IV

Brussels IIbis Regulation 2017

edited by

Ulrich Magnus Peter Mankowski

Brussels IIbis Regulation is Volume IV of the Series European Commentaries on Private International Law edited by Ulrich Magnus and Peter Mankowski, written by Introduction: Ulrich Magnus / Peter Mankowski Arts. 1–2: Walter Pintens Arts. 3–9: Alegría Borrás Arts. 10–15: Étienne Pataut / Estelle Gallant Arts. 16–19: Peter Mankowski Art. 20: Marta Pertegás Sender / Cristina M. Mariottini Arts. 21–25: Kurt Siehr Arts. 26–32: David McClean Arts. 33–34: Peter Mankowski Arts. 35–46: Ulrich Magnus Arts. 47–52: Peter McEleavy Arts. 53–58: Luís de Lima Pinheiro Arts. 59–63: Jörg Pirrung Arts. 64–72: Peter Mankowski

To be cited as: Magnus / Mankowski /Author, Brussels IIbis Regulation (2017) Art. # note #

The Deutsche Nationalbibliothek lists this publication in the Deut­sche Na­tio­nalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. Verlag Dr. Otto Schmidt KG Gustav-Heinemann-Ufer 58, 50968 Köln Tel. +49 221 / 9  37  38-01, Fax +49 221 / 9  37  38-943 [email protected], www.otto-schmidt.de ISBN (print)  978-3-504-08011-2 ISBN (eBook)  978-3-504-38560-6

© 2017 by Verlag Dr. Otto Schmidt KG, Köln All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per­mis­sion of the publisher. The paper used is made from chlorine-free bleached materials, wood and acid free, age resistant and environmentally friendly. Cover design: Lichtenford, Mettmann Typesetting: fidus Publikations-Ser­­­vice GmbH, Nördlingen Printing and binding: Hubert & Co., Göttingen Printed in Germany

Preface In April 2005 the policy decision of the Lord Chief Justice, for the judiciary, and the Lord Chancellor, for the Government, resulted in the creation of a new judicial post in England and Wales, Head of International Family Justice. This decision anticipated the very significant impact of Brussels IIbis which had entered into force on the 1st of March 2005. I was appointed to that office and its responsibility and burdens have grown at an astonishing rate since those early days. As the demand increased I was able to establish an office of International Family Justice with a dedicated legal expert and an administrator to register, record and handle all communications that did not demand legal expertise. This growth is well illustrated by the number of cases referred to the office annually either by judges within our jurisdiction or by judges from other jurisdictions. Whilst we offer a global service, the preponderance of the referrals originate in proceedings issued under Brussels IIbis. In the year 2005 we recorded 3 referrals; in 2006 – 6; in 2007 – 26; in 2008 – 50; 2009 – 113; in 2010 – 129. In 2011 we were already over the 200 mark. Thus when Professors Magnus and Mankowski invited me to write a Preface for this Commentary I was intrigued and eager to see the text. It has not only satisfied my curiosity but immediately persuaded me that this is not only a work of outstanding scholarship but also one of great utility to judges, practitioners, academics and students of European family law. I might well say only that the quality of the scholarship is sufficiently established by the distinction of the contributors, all of whom have established the highest reputations in this field. However having read the sections on Articles 1-19 of the Regulation in particular, I add my own judgment. All these texts are profoundly authoritative. Available decisions of the Court of Justice of the European Union are all included and skilfully analysed. Problematic areas that would benefit from a reference to that Court for consideration and interpretation are emphasised. Where else could the curious and the needy find such clear guidance? The Good Practice Guide, compiled by a group of experts and published by the Commission in 2005, is now outdated and there is seemingly no resolve to launch a second edition. Professor Lowe’s second edition of his comprehensive work on the International Movement of Children is eagerly awaited but as yet with no announced publication date. I was particularly gratified by the recurrent treatment of direct judicial collaboration. As one who has argued the great potential of judicial activism in the operation and enforcement of the regulation, it is heartening to read that progress made to date is fully appreciated and

v

Preface

supported by academic commentators. I hope that such clear and objective reasoning will persuade those few Member States who remain abstinent to appoint a sitting judge to the Network and to provide what resources are necessary to enable that judge to function. The Rt. Hon. Lord Justice Thorpe Head of International Family Justice High Court of Justice, Court of Appeal The Strand, London

vi

Foreword The Brussels IIbis Regulation is the magna charta of cross-border divorce and cross-border lawsuits concerning parental responsibility in Europe. It has substantially changed the way how lawyers have to advice clients in such cases. The number of court decisions is mounting and ever rising. In particular, the “big money” cases often involve cross-border elements and are subjected to this Regulation. The time is ripe for a truly pan-European treatment. This Commentary follows the style of the exemplarily well received volume on the Brussels I Regulation. It assembles a team of top experts from all over Europe. Experts from Scotland and France to Portugal and from Spain and Italy to Belgium and Germany join forces. This Commentary combines in-depth analysis with a genuine and truly European perspective. It is cutting-edge writing providing the excellence so often called for. Given the still relative scarcity of guiding decisions by the Court of Justice of the European Union on the Brussels IIbis Regulation /although the case law is mounting), academic writing will have great relevance and will have to provide for the necessary guidance. This Commentary endeavours to serve the need of an ever rising number of practitioners concerned with European divorce or parental responsibility cases, and it will hopefully stir academic discussion in total Europe. At least it can claim to have been the first (and still to be the only major) English language article-by-article commentary on this very important piece of European legislation. Everyone who has ever undertaken the venture to edit a multi-author work only too well knows about the absolute necessity of competent assistance. The editors thus are absolutely grateful and cannot remotely express the thanks and accolades due to our backing team at Hamburg in a proper fashion. Without them it would have been virtually impossible to complete this commentary. Friederike Höffmann and Till Gerhardt initially compiled the Index and the Tables of Cases, with Professor Mankowski being responsible for their revision. The list of Abbreviations was prepared by Professor Mankowski. Secretarial support was rendered by Helga Jakobi. Susan Wintermuth and Bevan Marten to different degrees shouldered the linguistic revision applied to the first version. To praise the division of Otto Schmidt which formerly was sellier european law publishers, in particular Andreas Pittrich and Anna Rosch, for their almost infinite patience and their constantly encouraging support would be tantamount to carrying owls to Athens. Ulrich Magnus Peter Mankowski

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List of Authors Professor Alegría Borrás Emeritus Professor of Private International Law, Facultad de Derecho, Universidad de Barcelona

Professor Peter McEleavy Chair in International Family Law, Dundee Law School, University of Dundee Barrister, 1 Garden Court, London

Estelle Gallant Professor/Maître de conférences IRJS – Institut de recherche juridique de la Sorbonne – Université Paris 1 PanthéonSorbonne

Professor Étienne Pataut IRJS, Institute de rércheches juridiques de Sorbonne, Université Paris I PanthéonSorbonne

Professor Luís de Lima Pinheiro Faculdade de Direito da Universidade de Lisboa Professor Dr. Ulrich Magnus Fakultät für Rechtswissenschaft, Seminar für ausländisches und internationales Privat- und Prozessrecht, Universität Hamburg Professor Dr. Peter Mankowski Fakultät für Rechtswissenschaft, Seminar für ausländisches und internationales Privat- und Prozessrecht, Universität Hamburg Dr. Cristina M. Mariottini Senior Legal Officer at the Permanent Bureau, Hague Conference on Private International Law Professor David McClean, CBE, QC Emeritus Professor of Private International Law, School of Law, University of Sheffield

Professor Dr. Marta Pertegás Sender Faculteit Rechten, Universiteit Antwerpen First Secretary at the Permanent Bureau, Hague Conference for Private International Law Professor Dr. Walter Pintens Faculty of Law, Department of Private Law, Katholieke Universiteit Leuven Professor Dr. Jörg Pirrung Former Judge at the Court of First Instance of the European Communities, Luxembourg Professor at the Universität Trier Professor Dr. Dr. h.c. Kurt Siehr Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg Universität Zürich

Table of Contents Preface

v

Foreword

vii

List of Authors

viii

List of Principal Works and Monographs List of Abbreviations

xi xiii

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 Introduction Chapter I:

4

Scope and Definitions

Chapter II: Jurisdiction

Section 1: Section 2: Section 3:

Divorce, legal separation and marriage annulment Parental responsibility Common provisions

Chapter III: Recognition and Enforcement Section 1: Section 2: Section 3: Section 4: Section 5: Section 6:

Recognition Application for a declaration of enforceability Provisions common to Sections 1 and 2 Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child Authentic instruments and agreements Other provisions

52 89 89 113 186 281 281 320 356 375 411 420

ix

Table of Contents

Chapter IV: Cooperation between Central Authorities in Matters of Parental Responsibility

446

Chapter V: Relations with Other Instruments

457

Chapter VI: Transitional Provisions

472

Chapter VII: Final Provisions

483

Table of Cases

519

European Court of Justice

519

European Court of Human Rights

529

Index

531

x

List of Principal Works and Monographs Referred to by Author Alone Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007) Baumbach/Lauterbach/Hartmann, ZPO (75th ed. München 2017) Boele-Woelki/González Beilfuss (eds.), Brussels IIbis: Its Impact and Application in the Member States (Antwerpen/Oxford 2007) de Boer, Internationaal privaatrecht – Commentaar Brussel II-bis (Titel 14), in: Personen- en familierecht (looseleaf Deventer) Bülow/Böckstiegel/Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (looseleaf München 1953-ongoing) Burgstaller/Neumayr, Internationales Zivilverfahrensrecht (looseleaf Wien 2000-ongoing) Calvo Caravaca/Carrascosa González, Derecho de familia internacional (Madrid 2003) Carbone/Queirolo (a cura di), Diritto di famiglia e Unione Europea (Torino 2008) Jörg Dilger, Die Regelungen zur internationalen Zuständigkeit in Ehesachen in der Verordnung (EG) Nr. 2201/2003 (Tübingen 2004) Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (Tübingen 2003) Fasching/Konecny, Kommentar zu den Zivilprozessgesetzen, vol. 5/2 (2nd ed. Wien 2010) Fulchiron/Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (Paris 2005) Gallant, Responsabilité parentale et protection des enfants en droit international privé (Paris 2004) Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed. München 2010) Gewaltig, Von der nationalen zur europäischen Zuständigkeitsordnung im Familienrecht (Frankfurt/Main etc. 2008) Gördes, Internationale Zuständigkeit, Anerkennung und Vollstreckung von Entscheidungen über die elterliche Verantwortung (Frankfurt etc. 2004) Hajnczyk, Die Zuständigkeit für Entscheidungen in Ehesachen und in anderen Familiensachen aus Anlass von Ehesachen sowie deren Anerkennung und Vollstreckung in der EG und in der Schweiz (Bochum 2003) Henrich, Internationales Scheidungsrecht (3rd ed. Bielefeld 2012) Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (Jena 2008) Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union (Frankfurt etc. 2006) Kropholler/von Hein, Europäisches Zivilprozessrecht (9th ed. Frankfurt/Main 2011)

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List of Principal Works and Monographs

Layton/Mercer, European Civil Practice (2nd ed. London 2004) de Lima Pinheiro, Direito Internacional Privado, Vol. III: Compêtencia internacional e reconhecimento de decisões estrangeiras (2nd ed. Lisboa 2012) Lowe/Everall/Nicholls, The New Brussels II Regulation – A Supplement to International Movement of Children (London 2005) Magnus/Mankowski, Brussels Ibis Regulation (Köln 2016) Malatesta/Bariatti/Pocar (eds.), The External Dimension of EC Private International Law in Family and Succession Matters (Padova 2008) Münchener Kommentar zur ZPO, Vol. III (4th ed. München 2013) Mulch, Deutsch-italienische Scheidungssachen im Hinblick auf die Rechtsakte der Europäischen Union (Diss. Heidelberg 2001) Nagel/Gottwald, Internationales Zivilprozessrecht (7th ed. Köln 2013) Niklas, Die europäische Zuständigkeitsordnung in Ehe- und Kindschaftsverfahren (Tübingen 2003) Ní Shúilleabháin, Cross-Border Divorce Law – Brussels II bis (Oxford 2010) Nogales Cejudo (dir.), Cooperación judicial en materia de familia y relaciones parentales en la Unión Europea (Madrid 2006) Nomos Kommentar BGB, vol. I (3rd ed. Baden-Baden 2016) Nourissat/Devers, Règlement Bruxelles IIbis – Règles de competence, in: Lamy Procédures communautaires fasc. 245 (janvier 2005) Nourissat/Devers, Règlement Bruxelles IIbis – Règles de reconnaissance et de l’exécution, in: Lamy Procédures communautaires fasc. 265 (janvier 2005) Ploeckl, Umgangsstreitigkeiten im deutsch-französischen Rechtsverkehr (Diss. Köln 2003) Rauscher, Europäisches Kollisions- und Zivilprozessrecht, vol. I (4th ed. Köln 2016), vol. II (4th ed. Köln 2015) Sauer, Internationale Zuständigkeit für die Auflösung und Lockerung des Ehebandes nach deutschem, französischem und europäischem Recht (Regensburg 2003) Schack, Internationales Zivilverfahrensrecht (6th ed. München 2014) Schlosser/Hess, EU-Zivilprozessrecht (4th ed. München 2015) Staudinger, BGB, Internationales Verfahrensrecht in Ehesachen I (Berlin 2014) Sturlèse, Compétence, reconnaissance et execution des decisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs, J-Cl. Procedure Civile fasc. 910-10 (2001) Thomas/Putzo, ZPO (37th ed. München 2016) Uccella, Il diritto comunitario sulle decisioni in materia matrimoniale e di responsibilità (Salerno 2005) Wautelet (ed.), Actualités du contentieux familial international (Bruxelles 2005) Winkel, Grenzüberschreitendes Sorge- und Umgangsrecht und dessen Vollstreckung (Diss. Regensburg 2001) Zöller, ZPO (31st ed. Köln 2016).

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List of Abbreviations A.C. ADR AdvBl AEDIPr A-G A-G A-G AG AJ fam. AJFL All ER Am. J. Comp. L. Anh. Anm. AnwBl App. Arr.Rb. Art. Aud. Prov. AWD

The Law Reports, Appeal Cases Alternative Dispute Resolution Advocatenblad Anuario Español de Derecho Internacional Privado Advocate General (EU) Attorney-General (Commonwealth) Advocaat Generaal (Netherlands) Amtsgericht Actualités juridiques famille Australian Journal for Family Law The All England Law Reports American Journal of Comparative Law Anhang Anmerkung Anwaltsblatt Corte di appello (or: di appello) Arrondissementsrechtbank Article Audiencia Provincial Außenwirtschaftsdienst des Betriebsberaters

BayObLG BayObLGZ

Bayerisches Oberstes Landesgericht Amtliche Sammlung der Entscheidungen des Bayerischen Obersten Landesgerichts in Zivilsachen Bayerische Verwaltungsblätter Betriebsberater Bülow/Böckstiegel/Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (looseleaf München 1953-ongoing) Brussels Convention Berichte der Deutschen Gesellschaft für Völkerrecht Bundesgericht Bürgerliches Gesetzbuch Bundesgesetzblatt Entscheidungen des Schweizerischen Bundesgerichts – Amtliche Sammlung Bundesgerichtshof Schnelldienst zur Zivilrechtsprechung des Bundesgerichtshofs Amtliche Sammlung der Entscheidungen des Bundesgerichtshofs in Zivilsachen Blatt Bolétin Oficiál Español Deutscher Bundesrat – Drucksachen

BayVBl BB BBGS BC BerDGesVR BG BGB BGBl. BGE BGH BGH-Report BGHZ Bl. BOE BR-Drs.

xiii

List of Abbreviations

BT-Drs. BYIL

Deutscher Bundestag – Drucksachen British Yearbook of International Law

CA C.A. Cah. dr. fam. Cambridge L.J. Cambridge Yb. Eur. L. Can. Fam. L.Q. Cass. Cassaz. CDE Ch. Ch.D. Ch. & Fam. L. Q. Ch. & L. Q. Chron. Civ. Just. Q. C.J. cl. Clunet C.M.L. Rev. Co. col. Col. J. Eur. L. Col. Jur. COM CPR Ct.

Cour d’appel Court of Appeal Les cahiers de droit familial Cambridge Law Journal Cambridge Yearbook of European Law

D. DAVorm DB Der. fam. Digest Dir. fam. Diss. Div. Act. DNotZ Doc. Giust. Dr. & Patr. Dr. aff. Dr. fam. DVBl

xiv

Canadian Family Law Quarterly Cour de Cassation Corte di Cassazione Cahiers de droit européen Chapter Chancery Division Child and Family Law Quarterly Child and Law Quarterly Chronique Civil Justice Quarterly Chief Justice clause Journal du droit international, fondée par E. Clunet Common Market Law Review Company columna Columbia Journal of European Law Colectânea de Jurisprudência Document of the Commission Rules of Civil Procedure Court Recueil Dalloz Sirey Der Amtsvormund Der Betrieb Derecho de familia Digest of case-law relating to the European Communities, Series D: Convention of 27 September 1968 Il diritto di famiglia e della persone Dissertation Divorce: actualité juridique, sociale et fiscale Deutsche Notar-Zeitschrift Documentazione Giustizia Droit et patrimoine Droit des affaires Droit familial Deutsches Verwaltungsblatt

List of Abbreviations

ead. EC ECHR ECJ ECR ed. ed. Edinburgh L. Rev. eds. EFSlg. EF-Z E.L. Ell. D. ERA ERPL et al. ETS EuGVÜ EuLF Eur. J. L. Reform Eur. Lawyer Eur. L. Rev. Eur. L. Rptr. Europa e dir. priv. EuZ EuZW EvBl EWCA EWHC EWiR EWS

eadem European Community European Court on Human Rights European Court of Justice Reports of Judgments of the European Court of Justice edition editor Edinburgh Law Review editors Ehe- und familienrechtliche Entscheidungen Zeitschrift für Ehe- und Familienrecht European Law Elleniki Dikaio Europäische Rechts-Akademie European Review of Private Law et alii European Treaty Series Brussels Convention European Legal Forum European Journal of Law Reform The European Lawyer European Law Review European Law Reporter Europa e diritto privato Zeitschrift für Europarecht Europäische Zeitschrift für Wirtschaftsrecht Evidenzblatt England and Wales Court of Appeal England and Wales High Court Entscheidungen zum Wirtschaftsrecht Europäisches Wirtschafts- und Steuerrecht

Fam.

Familia – Rivista di diritto della famiglia e di successioni in Europa Famiglia diritto Familiengericht Family Law Family Law Review Die Praxis des Familienrechts Zeitschrift für das gesamte Familienrecht Interdisziplinäre Zeitschrift für Familienrecht fascicule Family Court Reporter Family Division Forum Familien- und Erbrecht Festgabe Praxis der freiwilligen Gerichtsbarkeit Tijdschrift voor Familie- en Jeugdrecht

Fam. Dir. FamG Fam. L. Fam. L. Rev. FamPra.ch FamRZ FamZ fasc. FCR F.D. FF FG FGPrax FJR

xv

List of Abbreviations

FLA FLR fn. Foro it. FPR FS FuR

Family Law Act Family Law Reports Footnote Foro italiano Familie und Partnerschaft im Recht Festschrift Familie und Recht

Gaz.Pal. Geb. gen.ed. German L.J. Giur. it. Giust. Civ. GmbH GmbHG GPR GS

Gazette du Palais Geburtstag (anniversary) general editor German Law Journal Giurisprudenza italiana Giustizia Civile Gesellschaft mit beschränkter Haftung Gesetz betreffend die Gesellschaften mit beschränkter Haftung Zeitschrift für Gemeinschaftsprivatrecht Gedächtnisschrift

H.C. HD H.L. Hof Hof van Cass.

High Court Højesterets Domme (Denmark) or Högsta Domstolen (Sweden) House of Lords Gerechtshof (Netherlands) or Hof van Beroep (Belgium) Hof van Cassatie

ibid. ICLQ id. iFamZ IFL IHR ILM I.L.Pr. ILRM ILSA J. Int. & Comp. L. Inc. Int’l. J. L. Pol. & Fam. Int. lis Int’l. Lawyer IPRax IPRspr.

ibidem International and Comparative Law Quarterly idem Interdisziplinäre Zeitschrift für Familienrecht International Family Law Internationales Handelsrecht International Legal Materials International Litigation Procedure Irish Law Reports Monthly International Law Students’ Association Journal of International and Comparative Law Incorporated International Journal of Law, Policy and the Family

IR I.R. iss.

xvi

International lis The International Lawyer Praxis des Internationalen Privat- und Verfahrensrechts Deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts Informations rapides Irish Reports issue

List of Abbreviations

J. JBl JBL J-Cl. JCP J. Mar. & Fam. J. PIL J. trib. J. trib. dr. eur. Jura Jur. Rev. jurisPR-FamR JuS JZ

Justice Juristische Blätter Journal of Business Law Juris-Classeur (répertoire) Juris-Classeur Périodique, La Sémaine Juridique Journal of Marriage and the Family Journal for Private International Law Journal des tribunaux Journal des tribunaux, droit européen Juristische Ausbildung Juridical Review Juris PraxisReport Familienrecht Juristische Schulung Juristenzeitung

KantonsG KG

Kantonsgericht Kammergericht

LG LGZ LIEI lit. L.J. LM

LMCLQ LMK loc. cit. Ltd.

Landgericht (Germany), Landesgericht (Austria) Landesgericht in Zivilrechtssachen Legal Issues of Economic Integration littera Lord Justice Lindenmaier, Fritz/Möhring, Philipp, Nachschlagewerk des Bundesgerichtshofs – Entscheidungen in Zivilsachen mit Leitsätzen, Sachverhalt und Gründen (München looseleaf 1951-ongoing) Lloyd’s Maritime and Commercial Law Quarterly Lindenmaier/Möhring Kommentierte Rechtsprechung loco citato Limited

McGill L.J. MDR MittPat Mod. L. Rev. Mon. Belge M.R.

McGill Law Journal Monatsschrift für deutsches Recht Mitteilungen der Deutschen Patentanwälte Modern Law Review Moniteur Belge Master of the Rolls

n. ncpc NF NGCC NILR NIPR NJ NJA NJOZ NJW

numero Nouveau Code de Procedure Civile Neue Folge Nuova giurisprudenza civile commentata Netherlands International Law Review Nederlands Internationaal Privaatrecht Nederlandse Jurisprudentie Nytt Juridiskt Arkiv Neue Juristische Online-Zeitschrift Neue Juristische Wochenschrift

xvii

List of Abbreviations

NJW-RR NLCC no. Noticias UE Nr. NTBR NTER NTIR NVwZ nyr

NJW-Rechtsprechungsreport Zivilrecht Nuove legge civili commentati Number or numéro Noticias de la Unión Europea Nummer Nederlands Tijdschrift voor Burgerlijk Recht Nederlands Tijdschrift voor Europees Recht Nordisk Tidskrift for International Ret Neue Zeitschrift für Verwaltungsrecht not yet reported

ObG öAnwBl ÖJZ ÖJZ-LSK ÖNotZ ØLD ØLK OGH O.H. OJ OLG OLG-NL OLG-Report

Obergericht Österreichisches Anwaltsblatt Österreichische Juristenzeitung Österreichische Juristenzeitung – Leitsatz-Kartei Österreichische Notariats-Zeitschrift Østre Landsrets Domme Østre Landsrets Kendelse Österreichischer Oberster Gerichtshof Court of Sessions, Outer House Official Journal of the European Community (or Union) Oberlandesgericht OLG-Rechtsprechung Neue Länder Schnelldienst zur Zivilrechtsprechung der Oberlandesgerichte (regional editions) Rechtsprechung der Oberlandesgerichte in Zivilsachen opere citato

OLGZ op. cit.

Pres. Pret.

pagina paragraph Pasicrisie luxembourgeoise Privy Council Private International Law European Commission, Practice Guide for the application of the new Brussels II Regulation (2005) http://europa.eu.int/comm/ justice_home/fsj/civil/parents/fsj_civil_recognition_parents_en.htm President Pretore

QB Q.B.D. Q.C.

The Law Reports, Queen’s Bench Division Queen’s Bench Division Queen’s Counsel

RabelsZ

Rabels Zeitschrift für ausländisches und internationales Privatrecht Rechtbank Revue belge de droit international Revue critique de droit international privé

p. para. Pas. lux. P.C. PIL Practice Guide

Rb. RBDI RCDIP

xviii

List of Abbreviations

RDIPP Rec. REDI Rel. Rép. Rép. Defrénois Rev. der. com. eur. Rev. dir. fam. Rev. dr. étr. Rev. dr. fam. Rev. dr. UE Rev. gen. der. eur. Rev. héll. dr. int. Rev. Jur. Cat. Rev. not. belge Rev. trim. dr. fam. Riv. dir. int. Riv. dir. matrim. Riv. dir. proc. Riv. trim. dr. proc. civ. RIW RJC Revista Jurídica de Catalunya RMC RNotZ RPfleger RSC Rt. RTDE R.W. RZ

Rivista di diritto internazionale privato e processuale Recueil Revista Española de Derecho Internacional Tribunal da Relação Répertoire Répertoire du notariat Defrénois Revista de derecho comunitario europeo Revista de direito de família Revue du droit des étrangers Revue de droit familial Revue du droit de l’Union Européenne Revista general de derecho europeo Revue héllenique de droit international Revista Jurídica de Catalunya Revue du notariat belge Revue trimestrielle de droit familial Rivista di diritto internazionale Rivista del diritto matrimoniale e dello stato delle persone Rivista di diritto processuale Rivista trimestrale di diritto e procedura civile

S.C. sec. seq. sess. SJZ SLT somm. SozSi StAZ Stud. iur. sup. SvJT

Supreme Court section sequens (or sequentes) session Schweizerische Juristen-Zeitung Scots Law Times sommaires commentées Soziale Sicherheit Zeitschrift für das gesamte Standesamtswesen Studium iuris superieur (France) or supreme (English) Svensk Juristtidning

Recht der Internationalen Wirtschaft RJPF Revue Juridique Personnes et Famille Revue de Marché commun Rheinische Notar-Zeitschrift Der Deutsche Rechtspfleger Rules of the Supreme Court Retstidning Revue trimestrielle de droit européen Rechtskundig Weekblad Richterzeitung

xix

List of Abbreviations

SZ SZIER

Sammlung in Zivilsachen (Austria) Schweizerische Zeitschrift für internationales und europäisches Recht

TCR TEU TFEU TGI Trib. TS

Tijdschrift voor civiele rechtspleging Treaty on the European Union Treaty on Functioning if the European Union Tribunal de grande instance Tribunale Tribunal Supremo

UfR UNIDROIT

Ugeskrift for Retsvæsen International Institute for the Unification of Private Law

v. V-C VersR Vita not. vol. VuR Vzngr.

versus Vice-Chancellor Versicherungsrecht Vita notarile Volume Verbraucher und Recht Voorzieningenrechter

WLR WM WPNR

The Weekly Law Reports Wertpapier-Mitteilungen Weekblad voor Privaatrecht, Notariaat en Registratie

Yb. PIL

Yearbook for Private International Law

ZErb ZEuP ZEuS ZEV ZfRV ZKJ ZNotP ZPO ZR ZSR ZvglRWiss ZZP ZZP Int.

Zeitschrift für die Steuer- und Erbrechtspraxis Zeitschrift für Europäisches Privatrecht Zeitschrift für Europäische Studien Zeitschrift für Erbrecht und Vermögensnachfolge Zeitschrift für Rechtsvergleichung Zeitschrift für Kindschaftsrecht und Jugendhilfe Zeitschrift für die notarielle Praxis Zivilprozessordnung Blätter für Zürcherische Rechtsprechung Zeitschrift für schweizerisches Recht Zeitschrift für vergleichende Rechtswissenschaft Zeitschrift für Zivilprozess Zeitschrift für Zivilprozess International

xx

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 Official Journal no. L 338, 23.12.2003, p. 1–29 THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 61(c) and Article 67(1) thereof, Having regard to the proposal from the Commission,1 Having regard to the opinion of the European Parliament,2 Having regard to the opinion of the European Economic and Social Committee,3 Whereas: (1) The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market. (2) The Tampere European Council endorsed the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area, and identified visiting rights as a priority. (3) Council Regulation (EC) No. 1347/20004 sets out rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility for the children of both spouses rendered on the occasion of the matrimonial proceedings. The content of this Regulation was substantially taken over from the Convention of 28 May 1998 on the same subject matter.5 (4) On 3 July 2000 France presented an initiative for a Council Regulation on the mutual enforcement of judgments on rights of access to children.6 (5) In order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding. (6) Since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is more appropriate to have a single instrument for matters of divorce and parental responsibility. 1 2 3 4 5

6

OJ C 203 E, 27.8.2002, p. 155. Opinion delivered on 20 September 2002 (not yet published in the Official Journal). OJ C 61, 14.3.2003, p. 76. OJ L 160, 30.6.2002, p. 19. At the time of the adoption of Regulation (EC) No. 1347/2000 the Council took note of the explanatory report concerning that Convention prepared by Professor Alegria Borrás (OJ C 221, 16.7.1998, p. 27). OJ C 234, 15.8.2000, p. 7.

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(7) The scope of this Regulation covers civil matters, whatever the nature of the court or tribunal. (8) As regards judgments on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures. (9) As regards the property of the child, this Regulation should apply only to measures for the protection of the child, i.e. (i) the designation and functions of a person or body having charge of the child’s property, representing or assisting the child, and (ii) the administration, conservation or disposal of the child’s property. In this context, this Regulation should, for instance, apply in cases where the parents are in dispute as regards the administration of the child’s property. Measures relating to the child’s property which do not concern the protection of the child should continue to be governed by Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.7 (10) This Regulation is not intended to apply to matters relating to social security, public measures of a general nature in matters of education or health or to decisions on the right of asylum and on immigration. In addition it does not apply to the establishment of parenthood, since this is a different matter from the attribution of parental responsibility, nor to other questions linked to the status of persons. Moreover, it does not apply to measures taken as a result of criminal offences committed by children. (11) Maintenance obligations are excluded from the scope of this Regulation as these are already covered by Council Regulation No. 44/2001. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5(2) of Council Regulation No. 44/2001. (12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. (13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court. (14) This Regulation should have effect without prejudice to the application of public international law concerning diplomatic immunities. Where jurisdiction under this Regulation cannot be exercised by reason of the existence of diplomatic immunity in accordance with international law, jurisdiction should be exercised in accordance with national law in a Member State in which the person concerned does not enjoy such immunity. (15) Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters8 should apply to the service of documents in proceedings instituted pursuant to this Regulation. (16) This Regulation should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, with regard to persons or property situated in that State. 7

8

2

OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Commission Regulation (EC) No. 1496/2002 (OJ L 225, 22.8.2002, p. 13). OJ L 160, 30.6.2000, p. 37.

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Recitals

(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. (18) Where a court has decided not to return a child on the basis of Article 13 of the 1980 Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seized, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law. (19) The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable. (20) The hearing of a child in another Member State may take place under the arrangements laid down in Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.9 (21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. (22) Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to “judgments” for the purpose of the application of the rules on recognition and enforcement. (23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be “automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement”. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this Regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law. (24) The certificate issued to facilitate enforcement of the judgment should not be subject to appeal. It should be rectified only where there is a material error, i.e. where it does not correctly reflect the judgment. (25) Central authorities should cooperate both in general matter and in specific cases, including for purposes of promoting the amicable resolution of family disputes, in matters of parental responsibility. To this end central authorities shall participate in the European Judicial Network in civil and commercial matters created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters.10 (26) The Commission should make publicly available and update the lists of courts and redress procedures communicated by the Member States.

9 10

OJ L 174, 27.6.2001, p. 1. OJ L 174, 27.6.2001, p. 25.

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(27) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.11 (28) This Regulation replaces Regulation (EC) No. 1347/2000 which is consequently repealed. (29) For the proper functioning of this Regulation, the Commission should review its application and propose such amendments as may appear necessary. (30) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, have given notice of their wish to take part in the adoption and application of this Regulation. (31) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, is not participating in the adoption of this Regulation and is therefore not bound by it nor subject to its application. (32) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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. (33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union, HAS ADOPTED THE PRESENT REGULATION:

Introduction I. II.

III.

IV.

V.

11

4

The purposes of the Regulation . . . . . . . . . . . 1 The Regulation as part of European international family law 1. The reality at present . . . . . . . . . . . . . . . . . . . . 10 2. The wider context . . . . . . . . . . . . . . . . . . . . . . . 11 Historical background of the Brussels IIbis Regulation 1. The way to Brussels II . . . . . . . . . . . . . . . . . . . 22 2. The way from Brussels II to Brussels IIbis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The Regulation as EU law 1. Direct applicability . . . . . . . . . . . . . . . . . . . . . . 27 2. EU external competence . . . . . . . . . . . . . . . . 29 The scope of application of the Regulation 1. International scope of application . . . . . 31 2. Territorial scope of the Regulation

a) In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 b) Application in the Member States . . . . . 37 1) Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 2) Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 3) Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 3a) Croatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41a 4) Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 5) Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . 43 6) Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 7) Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 8) Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 9) France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 10) Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 11) Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 12) Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 13) Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

OJ L 184, 17.7.1999, p. 23.

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VI.

14) Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 15) Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 16) Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 17) Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 18) Malta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 19) The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . 59 20) Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 21) Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 22) Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 23) Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 24) Slowenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 25) Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 26) Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 27) United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . 67 3. Material scope of the Brussels IIbis Regulation a) Matrimonial matters aa) Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 bb) Not: maintenance . . . . . . . . . . . . . . . . . . . . . . . . 71 cc) Not: property consequences . . . . . . . . . . . . 72 dd) Not: celebration and formation of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 ee) Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 b) Parental responsibility aa) General material scope . . . . . . . . . . . . . . . . . . 75 bb) Not: filiation or questions of parenthood or adoption . . . . . . . . . . . . . . . . 76 4. Temporal scope of application . . . . . . . . . 77 5. Personal scope of application . . . . . . . . . . 78 Interpretation of the Regulation 1. Independence from national concepts 79 2. Systematic and purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 3. Comparison with the Brussels IIbis Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 4. Systematic interpretation within the entire system of EU law . . . . . . . . . . . . 83

Introduction 5. Travaux préparatoires . . . . . . . . . . . . . . . . . . . 84 6. Not: Practice Guide . . . . . . . . . . . . . . . . . . . . . 85 VII. The reference procedure 1. In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2. Requirements of the reference procedure under Art. 267 TFEU a) No interpretation of national law . . . . . . 89 b) Pending procedure . . . . . . . . . . . . . . . . . . . . . . 90 c) Court of last instance . . . . . . . . . . . . . . . . . . . . 93 d) Relevance for the original dispute . . . . . 97 e) Obligation to refer . . . . . . . . . . . . . . . . . . . . . . . 99 f) Formal requirements . . . . . . . . . . . . . . . . . . 102 3. The effects of decisions of the CJEU 103 4. The reference procedure under the former Art. 68 (3) EC Treaty . . . . . . . . . 104 5. Fast track references . . . . . . . . . . . . . . . . . . . 107 6. History of references under the Brussels II and Brussels IIbis regime in a nutshell . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 VIII. Jurisdictional regime – generalities 1. Element of internationality required 113 2. Relations to non-Member States . . . . . 115 3. General concepts underlying heads of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 117 4. Relevant point of time . . . . . . . . . . . . . . . . 125 5. Establishing facts, burden of proof and ascertaining facts ex officio . . . . . . 127 6. Party autonomy . . . . . . . . . . . . . . . . . . . . . . . . 128 7. Lack of hierarchical order and rules on lis pendens . . . . . . . . . . . . . . . . . . . . . . . . . . 131 IX. Recognition and enforcement – generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 X. Particular delicacy of the topics touched upon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 XI. State liability for incorrect application of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 XII. Proposal for a Recast . . . . . . . . . . . . . . . . . . . . . . 143

Bibliography Bieber, Die Europäische Union im Familienrecht – “an incoming tide”?, in: Recueil de travaux en l’honneur du Suzette Sandoz (Zürich 2006), p. 189 de Boer, The Second Revision of the Brussels II Regulation: Jurisdiction and Applicable Law, in: Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008), p. 321 Borrás, Light and Shadows of Communitarisation of

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Private International Law: Jurisdiction and Enforcement in Family Matters with regard to Third States, in: Malatesta/Bariatti/Pocar p. 99 Calò, L’influence du droit communautaire sur le droit de la famille, in: Mélanges en l’honneur de Mariel Revillard (Paris 2007), p. 53 Honorati, Verso una competenza della Comunità Europea in materia di diritto di famiglia?, in: Bariatti p. 3

5

Introduction Maguire/Rosenblatt, Brussels II revised: Recent developments, June (2007) Fam. L. 517 Martiny, Auf dem Weg zu einem europäischen Internationalen Ehegüterrecht, in: FS Jan Kropholler (Tübingen 2008), p. 373 McEleavy, Applicable Law and Relation with Third States: The Use and Application of Habitual Residence, in: Malatesta/Bariatti/Pocar p. 269 Meeusen, Op weg naar een comunautair internationaal familie(vermogens)recht?, in: Europees Internationaal Familierecht (Den Haag 2006), p. 1 Mosconi, Europa, famiglia e diritto internazionale privato, Riv. dir. int. 2008, 347

Brussels IIbis Regulation Parra Rodríguez, Characterisation and Interpretation in European Family Law Matters, in: Malatesta/ Bariatti/Pocar p. 337 Pataut, International Jurisdiction and Third States: AView from the EC in Family Matters, in: Malatesta/ Bariatti/Pocar p. 123 Rogerson, Forum Shopping and Brussels IIbis, IPRax 2010, 553 Guus E. Schmidt, Duidelijkheid en hanteerbarkeid van de Europese wetgeving op het terrein van het internationale familierecht, in: Europees Internationaal Familierecht (Den Haag 2006), p. 71.

I. The purposes of the Regulation 1 The Brussels IIbis Regulation is probably the most important international instrument on

family law, certainly within Europe.1 It has dramatically changed the law and the practice of the law for families with connections with more than one EU Member State.2 The Brussels IIbis Regulation pursues a number of purposes. Its objectives are enshrined in the Recitals to the Regulation and also in the Recitals to its predecessor, the Brussels II Regulation. 2 Primarily, the present Regulation intends to facilitate the judicial treatment of suits and

judgments on certain family matters among the Member States. The Regulation aims at easier and uniform rules and faster and simpler procedures for cross-border litigation within the EU concerning matrimonial matters and matters of parental responsibility in order to ensure the free movement of persons.3 Disputes on family matters play an increasing role within the EU due to the growing mobility of EU- and Non-EU-citizens and the growing number of international family relations. The procedural treatment of these trans-border disputes, in particular on parental visiting rights or child abductions, is complicated; disputes on divorce and parental responsibility are not covered by the Brussels Ibis Regulation. The Brussels IIbis Regulation therefore fills a gap. The Regulation is based on the conviction that the existing differences between national laws on jurisdiction and recognition of judgments and differing procedural formalities in the covered field impede the free movement of persons. The differences are considered to negatively affect even the proper functioning of the internal market.4 Difficulties to have divorce judgments recognised in other Member States or problems to enforce measures on parental responsibility there may discourage persons to establish family relations in other Member States and may therefore indeed restrict their free movement in the EU. As far as matrimonial matters and matters of

1

2

3 4

6

The International Family Law Group, iGuides to family law and practice – Brussels II p. 1 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. The International Family Law Group, iGuides to family law and practice – Brussels II p. 1 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. Recital (1); Recital (4) Brussels II Regulation. Recital (1); see also Recital (4) Brussels II Regulation; see thereto also infra Introduction notes 17–21.

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Introduction

parental responsibility are concerned, the Regulation removes existing differences and difficulties to a great deal. Like the Brussels Ibis Regulation, the Brussels IIbis Regulation is also based on the principle 3 of mutual trust in the legal system and judicial institutions of each other Member State, in the legality and correctness of judicial procedures taken, and decisions rendered, there.5 The principle of mutual trust includes the expectation – and aim – that each Member State is willing and able to strictly observe and apply the provisions of the Regulation. A further purpose the Regulation aims at is to base jurisdiction, and thereby the respon- 4 dent’s obligation to submit to the competent court’s jurisdiction,6 on uniform and fair connecting factors. The respondent must defend him- or herself only at places which the dispute is sufficiently related to. However, in family procedures these connecting factors must correspond to the peculiar character of family relations. In matrimonial matters they must primarily take account of where the marriage was led7 and in parental matters in particular of the interests of the child.8 Jurisdiction in parental matters is therefore generally founded where the child normally lives. Like the Brussels Ibis Regulation, also the Brussels IIbis Regulation has as its objective to 5 secure the principle of legal certainty with respect to jurisdiction and the recognition and enforcement of judgments. But whereas the Brussels Ibis Regulation establishes a system of provisions, in particular on jurisdiction, the outcome of which must be “highly predictable”9 and excludes the Common Law doctrine of forum non conveniens wholehandledly and outrightly,10 the Brussels IIbis Regulation is slightly less strict. If the interests of the child so require, Art. 15 allows the competent court by way of exception to transfer the case to a court in another Member State if that court is better placed to hear the case. However, in general it is not a matter of discretion for the court seized whether or not to entertain a suit; apart from the mentioned exception the court is strictly bound by the provisions of the Regulation.11 This is not subject to any sympathy or antipathy towards the decision of the 5

6

7

8 9

10 11

See Recital (21); see also the ECJ with respect to the Brussels I Regulation in Erich Gasser GmbH v. MISAT Srl (Case C-116/02) [2003] ECR I-14693 para. 72); Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada Ltd. and Changepoint SA, (Case C-159/02), [2004] ECR I-3565 para. 24. Rather than with an obligation the defendant is only burdened with disadvantages (judgment by default etc.) if s/he omits to react to a suit instituted by the claimant. See in effect Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26. See Recitals (12), (13). See Recital (11); for statements of the ECJ in the same direction compare: Owens Bank Ltd. v. Bracco (Case 129/92), [1994] ECR I-117 para. 32; Custom Made Commercial Ltd. v. Stawa Metallbau GmbH (Case 288/92), [1994] ECR I-2913 paras. 15, 18; Benincasa v. Dentalkit Srl (Case C-269/95), [1997] ECR I-3767 para. 28; Réunion Européenne SA v. Spliethoff’s Bevrachtingskantoor BV [Case C-51/97), [1998] ECR I-6511 para. 46; see further Layton/Mercer para. 11.020. Andrew Owusu v. Nugent B. Jackson (Case C-281/02), [2005] ECR I-1383 paras. 37 et seq. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 paras. 18 et seq.: strict interpretation and application of the wording of Art. 7 (1) that the residual jurisdiction under national law comes into play only where no court of a Member State has jurisdiction); see further infra Introduction notes 79 et seq.

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Brussels IIbis Regulation

ECJ in Owusu12 or to the unpopularity of Owusu in certain jurisdictions.13 The United Kingdom did not succeed in reversing or at least mitigating the allegedly unattractive effect of Owusu by submissions in the review process leading to the Brussels Ibis Regulation.14 Any alteration of the approach prevailing under Brussels I Regulation as the role model would certainly have to be followed in the field of Brussels IIbis which is insofar epigonal to Brussels I/Brussels Ibis. Arts. 33, 34 Brussels Ibis Regulation have not altered the policy substantially.15 Art. 3 might be phrased in intransitive and facilitative language whereas Art. 4 Brussels Ibis Regulation, if seen in isolation, uses mandatory, transitive and prescriptive language.16 But this misses Art. 6 (and its underlying ties with Art. 5 Brussels Ibis Regulation). 6 As far as matters of parental responsibility are concerned, the Regulation takes account of

the specific character of these disputes and aims primarily at the protection of the best interests of the child.17 Insofar as advisable with respect to its age and maturity the child must, for instance, be heard.18 The child’s interests may even override the original jurisdiction although in exceptional cases only (Art. 15). In order to meet the specific need of children for expeditious decisions and their speedy enforcement in parental matters,19 the Regulation provides also that in urgent cases decisions are given and enforced in appropriately short time (see Art. 11 (3) and the fast track procedure under Arts. 41, 42). 7 Though it could be regarded as rather a technical matter it is also of high practical impor-

tance that the Regulation aims at the widest possible avoidance of concurrent proceedings in different courts and of differing judgments on the same matter.20 Yet a discretionary transfer generally does not form part of the array of Regulation instruments.21 8 As regards the recognition and enforcement of judgments, the Regulation is governed by the

principle of automatic recognition which can be refused for few reasons only and by the further principle that enforcement must be efficient and rapid.22 9 Last but not least the Regulation aims at continuity with respect to its predecessor, Regu-

lation No. 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility for children of both spouses,23 12 13

14 15

16

17

18 19 20 21 22

8

Andrew Owusu v. N. B. Jackson (Case C-281/02), [2005] ECR I-1383. Tentatively contra Cook v. Plummer [2008] EWCA Civ 484, [2008] 2 FLR 989, 992 (10) (C.A., per Thorpe L.J.). See Cook v. Plummer [2008] EWCA Civ 484, [2008] 2 FLR 989, 992 (10) (C.A., per Thorpe L.J.). Contra Mittal v. Mittal [2013] EWCA Civ 1255 [40], [2014] Fam. 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.). This appears to be the pivotal argument in Mittal v. Mittal [2013] EWCA Civ 1255 [37], [2014] Fam. 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.). See Recitals (12), (13), (33); Arts. 15, 23 (a); see also Inga Rinau (Case C-195/08) [2008] ECR I-5271 para. 51. See Recital (19) and Arts. 11 (2), 41 and 42. See thereto infra before Art. 40 (Magnus). Arts. 19, 22 (c), (d), 23 (e), (f). Golubovich v. Golubovich [2010] 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). Recital (21); see also Arts. 31, 41, 42 and the ECJ in Inga Rinau (Case C-195/08), [2008] ECR I-5271 para. 50.

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Introduction

and at consistency with the interpretation and application of the Brussels Ibis Regulation insofar as these instruments contain comparable provisions. The Brussels Ibis Regulation and the Brussels IIbis Regulation have to be understood as an integrated system of procedural European rules which must be seen and applied as a whole. Their continuity and consistency is further secured by the CJEU’s interpretation of the Brussels Ibis Regulation and its predecessors, the Brussels II Regulation and the Brussels IIbis Regulation. The up to date few CJEU decisions on the latter two Regulations and the many decisions on the Brussels Ibis Regulation (and its predecessors) can be found on the internet under www. europa.eu.int or under www.curia.eu.int. II. The Regulation as part of European international family law 1. The reality at present After the Treaty of Amsterdam and the introduction of the EU competence for matters of 10 private international law and international procedural law in Arts. 65, 61 lit. c EC Treaty, the EU has penetrated, and deeply invaded into, the territory even of international family law. A whole body of rules and EU acts is developing, though sometimes at a modest pace. Yet, the Commission was not shy to seize upon a previous Convention project and thus paved the way in order to introduce a Proposal for a Regulation on jurisdiction and the recognition and enforcement of judicial decisions in matrimonial matters and matters relating to the parental responsibility for children of both spouses, the so-called Brussels II Regulation, complementing the Brussels Convention and the then Brussels I Regulation which both are restricted to civil and commercial matters excluding from their scope matrimonial and parental issues. The Commission perfected and brought on the way what was already at hands. Reports24 and Action Plans25 are still to follow, though.26 2. The wider context Yet, this forms only part of an overall plan of building a European private international law 11 lato sensu.27 Europe is on the – rather stony and long – way towards a unified international family law in a conclusive sense, i.e. including both rules of private international law stricto sensu and international procedural law. In the stalls or at the verge of making were and are further EU acts intended to pursue the task. The Rome III Regulation enterprise started as an

23

24

25

26 27

See in effect Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26. Report from the Commission to the European Parliament and the Council on the implementation on the framework programme for judicial cooperation in civil matters (2002–2006) of 9 February 2005, COM (2005) 34 final. Communication from the Commission to the European Parliament and the Council – The Hague Programme: Ten priorities for the next ten years: The Partnership for European renewal in the field of Freedom, Security and Justice of 10 May 2005, COM (2005) 184 final. See on the European agenda Boele-Woelki, Sept. [2006] IFL 169. See only Boele-Woelki, Molengrafica 2003, 325; Boele-Woelki/van Ooik, Molengrafica 2003, 343; BoeleWoelki, September [2006] IFL 149; Tonolo, Riv. dir. int. 2005, 797; Calo, in: Mélanges en l’honneur de Mariel Revillard (2007), p. 53.

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Brussels IIbis Regulation

instrument also aimed at amending the Brussels IIbis Regulation,28 but after its failure at the grand level it has been the first case29 of a successful Enhanced Cooperation yet reduced to dealing with the law applicable to divorce, separation and annulment of marriage.30 It became effective as of 21 June 2012. The EU Maintenance Regulation31 has already become effective as of 18 June 2011 (with an extraordinarily complicated legislative technique referring to the Hague Maintenance Protocol32 and indirectly and not explicitly to the EU Council Decision33 to ratify that Hague Protocol).34 The original Rome III proposal was felt 28

29 30

31

32

33

34

10

Proposal for a Council Regulation Amending 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, as Regards Jurisdiction and Applicable Law in Matrimonial Matters, COM (2006) 399 final of 17 July 2006; see thereon Ibili, WPNR 6685 (2006), 743; Pocar, in: Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 267; Bariatti/Ricci (eds.), Lo scogliomento di matrimonio nei regolamenti europei: da Bruxelles II a Roma III (Padova 2007); Bonomi, in: FS Roland Bieber (2007), p. 771, 776–783; Nascimbene, in: Carbone/Queirolo (eds.), Diritto di Famiglia e Unione Europea (Torino 2008), p. 207; Queirolo, in: Carbone/Queirolo (eds.), Diritto di Famiglia e Unione Europea (Torino 2008), p. 219; Carrascosa González/Seatzu, Studi sull’integrazione europea V (2010), 49 and also Gaertner, [2006] 2 JPrIL 99. See the Proposal for a Rome III Regulation by the Deutscher Rat für Internationales Privatrecht, cited by Henrich, in: FS Heinz Hausheer (2002), p. 235, 241; Rolf Wagner, FamRZ 2003, 803. See Hummer, EuZ 2011, 78. Council Regulation (EC) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and separation, OJ EU 2010 L 343/10. Commented upon by e.g. Eva Becker, NJW 2011, 1543; Finger, FuR 2011, 61; Ganz, FuR 2011, 69 and 369; Álvarez de Toledo Quintana, La Ley 3457 (2011), 1; Viganotti, Gaz. Pal. 22–23 juin 2011, p. 5; Malagoli, Contratto e impresa/Europa 2011, 436; Boele-Woelki, YbPIL 12 (2010), 1. Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ EU 2009 L 7/1. Commented upon by e.g. Vlas, WPNR 6794 (2009), 293; Nademleinsky, EF-Z 2009, 115; Nademleinsky, EF-Z 2011, 130; Fucik, iFamZ 2009, 245; Bambust, J. trib. 2009, 381; Nourissat, Procédures juin 2009, p. 7; Pocar/Viarengo, RDIPP 2009, 805; Marino, NGCC 2009 II 599; Castellanta/Leandro, NLCC 2009, 1051; Vanderkerckhove, Rev. dr. UE 2010, 57; Heger, ZKJ 2010, 52; Eames, [2011] Fam. L. 389; Finger, FuR 2011, 254; Bertrand Ancel/Muir Watt, RCDIP 99 (2010), 457; Heger/Selg, FamRZ 2011, 1101; Villata, Riv. dir. int. 2011, 731. The road to this Regulation officially started with the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations of 15 December 2005, COM (2005) 649 final. On this e.g. Bonomi, in: Recueil de travaux en l’honneur du Suzette Sandoz (Zürich 2006), p. 201; Dörner, in: FS Koresuke Yamauchi (2006), p. 81. Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations www.hcch.net. Commented upon by the authors referenced in fn. 29 and e.g. Azcáarga Monzonís, REDI 2008, 491; Malatesta, RDIPP 2009, 829; Borrás, AEDIPr 2007, 1305 (published 2009). Arts. 4, 5 Council Decision 2009/941/EC of 30 November 2009 on the Conclusion by the European Community of the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, OJ EU 2009 L 331/17. See in addition Declaration and Notification to the Hague Conference on Private International Law of 8 April 2010. For a critique see Mankowski, FamRZ 2010, 1487; Marino, Contratto e impresa/Europa 2010, 363; see also Borrás, in: Liber amicorum Kurt Siehr (2010), p. 173; Christian Kohler, in: Liber amicorum Kurt Siehr (2010), p. 277.

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necessary not the least in order to counter the incentives for forum shopping generated by the vast array of heads of jurisdiction available under the Brussels II and IIbis Regulations.35 Previously, this project – under the names either of Brussels III or Rome III36 – was meant also to cope with matrimonial affairs including property consequences,37 and divorce.38 Reduced to dealing with divorce the Rome III Proposal foresaw to allow a limited choice of court in matrimonial matters, to abolish Art. 6 and to modify Art. 7 Brussels IIbis Regulation and to add conflict rules on the dissolution of marriages to the present Brussels IIbis Regulation which provide for the eventual application of foreign divorce law. In particular, Sweden most strongly disagreed with the possibility to apply foreign divorce 12 law instead of the most liberal Swedish divorce law.39 Malta opposed from the other end, still nurturing a national legal order relying on the canonic verdict of divorce.40 The United Kingdom on the other hand was reluctant to pass on its own approach always to apply its domestic law and never foreign law in divorce matters.41 A period of uncertainty about the fate of Rome III ensued.42 Since the required unanimity to adopt the Rome III Regulation could not be obtained due to the fierce opposition by Sweden, the EU Council eventually decided in June 2008 to continue work “with a view to examining the conditions and implications of possibly establishing enhanced cooperation between the Member States.”43 This succeeded after a Proposal44 and proper empowerment45 in December 2010 with Austria, Belgium, Bulgaria, France, Germany, Italy, Latvia, Luxemburg, Malta, Portugal, Romania and Slovenia joining the club and Greece hopping on and off the boat.46 “Rome III est mort. Vive Rome III!”47 The introduction of (restricted) party autonomy at the grand level48 and the emphasis placed on the habitual residence as the primary connection factor, rele35 36

37

38

39

40

41

42 43

44

45 46 47 48

Marie-Odile Baur, (2003) 5 YbPIL 177, 185. See the Proposal for a Rome III Regulation by the Deutscher Rat für Internationales Privatrecht, cited by Henrich, in: FS Heinz Hausheer (2002), p. 235, 241; Rolf Wagner, FamRZ 2003, 803. On this aspect in particular e.g. Kröll, in: Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008), p. 379. See e.g. Trezza, Familia 2001, 221. Contributions to the discussion comprise i.a. Lagarde, in: Gottwald (ed.), Perspektiven der justiziellen Zusammenarbeit in der Europäischen Union (2004), p. 1; Volker Lipp, ibid., p. 21. The European Council meeting of 27/28 January 2008 could therefore not reach agreement on the Proposal. See on the backgrounds in more detail Martiny, FPR 2007, 191 et seq.; Christian Kohler, FPR 2008, 193; Christian Kohler, FamRZ 2008, 1673, 1678 et seq.; Hess, in: FS Dieter Leipold (2009), p. 237, 224 et seq. See McEleavy, in: Boele-Woelki (ed.), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerpen 2003), p. 509; Hartley, (2005) 54 ICLQ 813; Carlson/Cooke, [2007] Fam. L. 920. See Rolf Wagner, FamRZ 2009, 269, 275–281. See the decisions taken at the Council meeting of 6 June 2008: EU Council ~ Factsheet ~ (http://www. consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/101000.pdf). See also Council Doc. 11653/08, p. 23. Proposal for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and separation of 24 March 2010, COM (2010) 105 final. JUSTCIV 100 JAI 144. See Recital (6) Regulation (EC) No. 1259/2010. Lardeux, D. 2011, 1835. In detail in particular Franzina, Riv. dir. int. 2011, 488.

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Brussels IIbis Regulation

gating nationality to the lower ranks, are the main features. Whether the sensitive area of divorce law was the right place to attempt at such a first track procedure for the first time and to commence with a “Europe of two different velocities” or, shortish, “two-speeds-Europe”, is a very political topic which got astonishingly little attention. It might have become futile to raise or even to mention it.49 Another possibility previously considered was the small change of revising the Brussels IIbis Regulation50 and to get some kind of “Brussels IIter Regulation” by such means. Yet, that would have required unanimity in the Council under Art. 81 (3) TFEU (ex Art. 65 EC Treaty) and thus fell flat with the original Rome III Proposal failing to receive unanimous consensus.51 Furthermore, there were more general speculations that the United Kingdom would hinder any further unification of private international law in the EU.52 The probably final verdict had been indirectly given in the latter regard with the Brexit, though.53 13 The Maintenance Regulation is a régulation quadruple addressing issues of applicable law,

recognition and enforcement, and cooperation. Its central goal is the complete abolition of the exequatur and the adoption of uniform conflicts rules, but this has only been established insofar as Member States are also bound by the Hague Maintenance Protocol.54 14 After a protracted legislative history the Property Consequences Regulations55 have even-

tually seen the light in June 2016 and will become effective as of 29 January 2019. As for general Regulations binding all EU Member States (minus Denmark), the respective Proposals56 were eventually and effectively vetoed in the Council by Poland and Hungary in December 2015.57 They did thus not reach the unanimity required by Art. 81 (3) TFEU. Consequentially, the then Luxemburg Presidency officially declared them as finally failed.58 The problem was the envisaged junctim between regimes for traditional heterosexual marriages on the one hand and for registered partnerships on the other hand. The bulk of the other Member States (Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, 49 50

51 52 53 54 55

56

57 58

12

See Mankowski, in: Staudinger, BGB, Artt. 13–17b EGBGB (ed. 2011) Vor Art. 13 EGBGB note 46. See de Boer, in: Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008), p. 321. See COM (2010) 105 final p. 3 sub 2.1. Boele-Woelki, Ars Aequi Katern 101 (2006), 5643. See for instance Martiny, in: FS Jan Kropholler (2008), p. 373. See preceding fn. 53. Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes, OJ EU 2016 L 183/1; Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and recognition and enforcement of decisions in matters of the property consequences of registered partnerships, OJ EU 2016 L 183/30. Proposal for a Council Regulation on jurisdiction, applicable and recognition and enforcement of decisions in matters of matrimonial property regimes of 16 March 2011, COM (2011) 126 final; Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of the property consequences of registered partnerships, COM (2011) 127 final. Video coverage available at http://video.consilium.europa.eu/webcast.aspx?ticket=775-979-16687. Video coverage available at http://video.consilium.europa.eu/webcast.aspx?ticket=775-979-16687; Justice and Home Affairs Council 3–4 December 2015, Council of the European Union, Meeting n° 3433 http://consilium.europa.eu/en/meetings/jha/2015/12/03-04.

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Italy, Malta, Luxemburg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and Finland)59 was determined to accomplish an Enhanced Cooperation and the Commission submitted respective Proposals.60 These Proposals rather mirrored the original Proposals61 and not any compromises62 which had been developed in the meantime. At recordbreaking pace,63 the final Regulations were promulgated already in the very same month in which the Enhanced Cooperation had been sanctioned.64 Additionally, a further milestone has been reached in the area of the law of succession.65 15 After extensive scholarly preparation66 first a Green Paper67 and then a Proposal68 were tabled. Another time limited party autonomy and a switch to the habitual residence as the 59 60

61 62

63 64

65

66

67 68

Recital (11) COM (2016) 107 final. Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes, COM (2016) 106 final; Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of the property consequences of registered partnerships, COM (2016) 107 final. Trüten, EuZ 2016, 94. The latest from the mill was Note from the Presidency to the Council, Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes – Political agreement, 26 November 2015, 14651/15 JUSTCIV 276, accompanied by an additional Note, 1 December 2015, 14655/15 JUSTCIV 278. Mankowski, ZEV 2016, 479. Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and recognition and enforcement of decisions in matters of property regimes of international couples, covering both matters of matrimonial property regimes the property consequences of registered partnerships, OJ EU 2016 L 159/16. Green Paper Succession and Wills, 1 March 2005, COM (2005) 65 final, accompanied by Commission Staff Working Paper SEC (2005) 270; on the Green Paper see e.g. Dörner, ZEV 2005, 137; Jud, GPR 2005, 123; Davì, Riv. dir. int. 2005, 297; Claudia Rudolf, ÖNotZ 2005, 297; Blum, ZErb 2005, 170; Lagarde, in: Obra homenaje al Profesor Julio D. González Campos (2005), p. 1687; Daniel Lehmann, Die Reform des internationalen Erb- und Erbprozessrechts im Rahmen der geplanten Brüssel IV-Verordnung (2006); Calò, Foro it. 2006 V 169; Stumpf, EuZW 2006, 587; Heggen, RNotZ 2007, 1; Caram-Pietrini, Rep. Defrénois 2007, 1498; Dutta, RabelsZ 73 (2009), 547; Denkinger, Europäisches Erbkollisionsrecht – Einheit trotz Vielfalt? (2009). See only Lagarde, in: Gottwald (ed.), Perspektiven der justiziellen Zusammenarbeit in der Europäischen Union (2004), p. 1; Haas, in: Gottwald (ed.), Perspektiven der justiziellen Zusammenarbeit in der Europäischen Union (2004), p. 43; Dörner/Hertel/Lagarde/Riering, IPRax 2005, 1; Voltz, IPRax 2005, 64; Bajons, in: FS Andreas Heldrich (2005), p. 495; Dörner, in: FS Heinz Holzhauer (2005), p. 474. See on possible harmonisation in the area of substantive law of successions and inheritance e.g. Kuchinke, in: FS Alfred Söllner (2000), p. 589; Leipold, in: FS Alfred Söllner (2000), p. 647; Pintens, ZEuP 2001, 613; Cámara Lapuentes, in: Cámara Lapuentes (ed.), Derecho privado Europeo (2003), p. 1185. Fn. 60. Proposal for a Regulation of the European Parliamant and the Council on jurisdiction, applicable, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession of 14 October 2009, COM (2009) 154 final. Commented upon e.g. by Dutta, RabelsZ 73 (2009), 457; Dörner, ZEV 2010, 221; Buschbaum/Marius Kohler, GPR 2010, 106; Bonomi, in: Liber amicorum Kurt Siehr (2010), p. 157; Schurig, in: FS Ulrich Spellenberg (2010), p. 343.

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Brussels IIbis Regulation

main connection factor are the main characteristics and most prominent issues.69 Whereas up to 2012 it was still quite justified to assert that the landscape of European international family and succession law was abundant and littered with Proposals and Green Papers,70 the mist has cleared considerably. The Maintenance Regulation and the Succession Regulation are in force. The two Proposals for property aspects have bright prospects of being promulgated by way of Enhanced Cooperation in the nearer future. The Proposal for a Revision of the Brussels II Regulation itself has been introduced. No more Green Papers linger around which would be mere formative proposals designed to stir and encourage debate.71 Even more abstract Action Plans72 and Programmes73 have been announced or predicted for a rather longish period already. But such programmatic announcements have lost their force over time and cannot be considered really burning issues anymore. Serious plans to cover pre-marital, pre-nuptial or ante-nuptial agreements which will be covered or can still serve as a useful instrument of marriage planning at all74 cannot be discovered yet. Any tendency that international family law crafted by the EU would be generally on the advance whereas correspondingly the national PIL of the Member States in family matters is on the retreat has come to a halt. Art. 81 (3) TFEU and the requirement of unanimity works its while if one is not prepared to resort to Enhanced Cooperation. 16 Even more progressive but rather part of the far future (if at all) were the thoughts of going

beyond private international law even lato sensu and harmonising and unifying substantive family law.75 This would be a true Europeanisation of family law if it ever will be implemented. The EU would really become an incoming tide.76 A privately established Commission on European Family Law consisting of 26 scholars from 21 countries77 has commenced its respective work in 200178 starting with the grounds for divorce.79 Its final goal is some kind of Restatement of European Family Law. Some bundles of so-called Principles have 69 70 71 72

73

74 75

76

77

78 79

14

See only Kindler, IPRax 2010, 44; Kindler, in: Liber amicorum Kurt Siehr (2010), p. 251. Andrew Dickinson, [2005] 1 JPrIL 197, 204. Harper/Frankle, March [2006] IFL 13. Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, OJ 1999 C 19/1. Draft Programme of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001 C 12/1. See Ries, [2005] IFL 165. See only the contributions in: Boele-Woelki (ed.), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003) and Martiny, in: Hartkamp et al. (eds.), Towards a European Civil Code (2nd ed. 1998), p. 151; Martiny, in: Martiny/Witzleb (eds.), Auf dem Wege zu einem Europäischen Zivilgesetzbuch (1999), p. 177; Antokolskaia, FamPra.ch 2002, 261; Antokolskaia, (2004) 6 Eur. J. L. Reform 159; Pintens, FamRZ 2003, 329 (Part I), 417 (Part II), 499 (Part III); Schwenzer, FamPra.ch 2003, 318; Schwenzer, in: FG Franz Hasenbühler (2004), p. 25; Schwenzer, (2004) 6 Eur. J. L. Reform 145; Jänterä-Jareborg, SvJT 2005, 804; Costa, Familia 2006, 125. See the provocative title (“Die Europäische Union im Familienrecht – ‘an incoming tide’?”) of the contribution by Bieber, in: Recueil de travaux en l’honneur de Suzette Sandoz (Zürich 2006), p. 189. On this Commission e.g. Pintens, FamRZ 2003, 240; Pintens, ZEuP 2004, 548; Boele-Woelki, (2004) 6 Eur. J. L. Reform 119; Handelmann, FF 2006, 98. In more detail see Boele-Woelki, ERA-Forum 1/2003, 142, 148–154. As some kind of result see the survey Boele-Woelki/Braat/Sumner (eds.), European Family Law in Action I: Grounds for Divorce (2003).

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already been published80 after intense comparative preparation.81 Details consist e.g. in some pledge for an additional regime of matrimonial property.82 In some areas, the developing case law of the ECHR83 might serve as an initial spark for, and thus prompt, legislative action in the farer future.84 To this, some judicial developments at the level of the CJEU might be added.85 It can be said with some justification that a European family law is under construction in many regards,86 even with regard to the long failed attempt to introduce a European Constitution.87 Yet predictions grow more and more pessimistic since the need for unanimity puts real limits on what a few years ago seemed an unstoppable Brussels juggernaut.88 On its quest towards a European (vulgo EU) international family law, the competence of the 17 EU still might be questioned, though.89 One might feel tempted to ask which connections with the aims and goals of the EU as spelled out in the first Articles of now the TFEU and formerly the EC Treaty justify such extension. Such questions might be raised, and respective doubts might be expressed, the more so since it is even less clear whether the EU would have the competence to unify or harmonise substantive family law. Politically, there cannot be any doubt that European law is no longer confined to the realm of trade and commerce, but reaches into the nooks and crannies of national life.90 The reason why the EU claimed competence even for international family law were the 18 indirect consequences of diverging approaches towards jurisdiction or applicable law. Conflicting judgments as to the dissolution of marriages were believed to produce “limping” marriages, matrimonia claudicantia. Such “limping” marriages could prove detrimental with regard e.g. to maintenance claims, successions or the ability to marry again.91 On this ground, “pluralism of laws” was accused to be an obstacle in the way of European integration and a hindrance to mobility.92 80

81

82 83

84 85

86 87 88 89

90 91 92

Boele-Woelki/Ferrand/González Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law regarding Divorce and Maintenance between Former Spouses (2004). On these principles e.g. Patti, Familia 2005, 337; Antokolskaia, FJR 2006, 262. As evidenced in particular in Boele-Woelki (ed.), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003) and Boele-Woelki/Braat/Sumner (eds.), European Family Law in Action, vol. I: Grounds for Divorce (2004), vol. II: Maintenance between Former Spouses (2004). Martiny, in: FS Dieter Schwab (2005), p. 1189. ECHR Marckx v. Belgium, 13 June 1979, Series A no. 31, p. 11, FamRZ 1979, 903; ECHR Mazurek v. France 1 February 2000 – FamRZ 2000, 1071 with note Vanwinckelen; ECHR Pla and Puncernau v. Andorra, 13 July 2004, FamRZ 2004, 1467 with note Pintens. See Pintens, in: FS Georg Ress (2005), p. 1047. See in some detail Gonzalez Beilfuss, AEDIPr 2004, 117, in particular 165–171 and also van den Eeckhout, NTER 2004, 302. See e.g. Caraciollo di Torrella/Masselot, (2004) 29 Eur. L. Rev. 32. Pintens, in: FS Dieter Schwab (2005), p. 1209. Hodson, [2005] IFL 235, 239. See only Honorati, in: Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 3. Arnull, (1999) 24 Eur. L. Rev. 516, 519. Harald Koch, in: FS Kostas Beys (Athinai 2003), p. 733, 742. Harald Koch, in: FS Kostas Beys (Athinai 2003), p. 733, 742; Dethloff, AcP 204 (2004), 544, 558 et seq.

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19 Yet, closer scrutiny reveals just how spurious this argument is. At least direct consequences

for the participation in economic relations cannot be identified.93 This applies the more so with regard to the extension of the European regime to all matters of parental responsibility.94 In essence, no balance was struck but precedence was given to the free circulation of decisions.95 The presumption that enough of a common core of pan-European family values throughout all Member States exists is dubious, too.96 20 On the other hand again, some justification can be gained if the free movement of workers is

interpreted in the light of Art. 8 Human Rights Convention and is expected to pay proper attention to the individual right to a family life.97 Limping marriages or affiliations might be detrimental.98 21 In fact, the Commission and the other EU organs based the EU competence to implement

the Brussels II and Brussels IIbis Regulations on Arts. 61 lit. c, 65 EC Treaty and, after the Treaty of Lisbon became effective, on Art. 81 TFEU. Alternatively, a thought or two might have been spent on Art. 18 (2) in conjunction with Art. 251 EC Treaty,99 now Art. 21 (2) in conjunction with Art. 294 TFEU. The latter approach would have had a major advantage as to consistency: Formerly Arts. 17, 18 (1) EC Treaty and now Art. 20; 21 TFEU do not require the Union citizen to exert any economic activity100 nor to exercise fundamental freedoms in cross-border activity as such,101 but are confined to cases of a not purely internal nature102 containing some cross-border-element.103 Hence, the alternative basis would have overcome doubts as to the ties and links between family law issues and the purposes pursued by the EU in the economic field. But Art. 81 (3) TFEU (ex Art. 65 EC Treaty) clearly and eventually closed the case for political and practical purposes: If matters of family law are definitely and unequivocally addressed in a certain rule and in a certain context that is more than only an indication where the TFEU attaches those matters to.

103

Becker-Eberhard, in: FS Kostas Beys (Athinai 2003), p. 93, 95. Jessurun d’Oliveira, in: Essays in Honour of Sir Peter North (2002), p. 111, 131 et seq. Jessurun d’Oliveira, in: Essays in Honour of Sir Peter North (2002), p. 111, 131 et seq. Jessurun d’Oliveira, in: Essays in Honour of Sir Peter North (2002), p. 111, 132. See Carpenter v. Secretary of State (Case C-60/00), [2002] ECR I-6279 paras. 40 et seq.; Dethloff, AcP 204 (2004), 544, 558. Dethloff, AcP 204 (2004), 544, 558 et seq. Spellenberg, in: FS Ekkehard Schumann (2001), p. 421, 427; Becker-Eberhard, in: FS Kostas Beys (Athinai 2003), p. 93, 95 et seq. See only A-G Jacobs, Opinion of 30 June 2005 in Case C-96/04, [2005] ECR I-3563 para. 54; MörsdorfSchulte, IPRax 2004, 315, 317. See only Zhu and Chen v. Secretary of State for the Home Department (Case C-200/02), [2004] ECR I-9925 para. 19; Egon Schempp v. Finanzamt München V, (Case C-403/03) [2005] ECR I-6421 paras. 21 et seq. Purely domestic cases fall outside Art. 20 TFEU (ex Art. 17 EC Treaty); Nordrhein-Westfalen v. Uecker and Jacquet v. Land Nordrhein-Westfalen (Joined Cases C-64/96 and C-65/96), [1997] ECR I-3171 para. 23; Garcia Avello v. État Belge (Case C-148/02), [2003] ECR I-11613 para. 26; Egon Schempp v. Finanzamt München V (Case C-403/03), [2005] ECR I-6421 para. 20. Egon Schempp v. Finanzamt München V (Case C-403/03), [2005] ECR I-6421 paras. 20–22.

16

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93 94 95 96 97

98 99

100

101

102

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III. Historical background of the Brussels IIbis Regulation 1. The way to Brussels II The fundamental freedoms from the EEC Treaty to the EC Treaty and today the TFEU 22 guarantee since 1958 the free movement of workers in the EU for employment purposes.104 But as employment is only one aspect of life, family bonds are almost necessarily affected by such free movement, be it that the exercise of this fundamental freedom results in the breakdown of existing family ties in the Member State which is left behind or in establishing new relationships in the Member State where a person now settles. The awareness that great differences between the family laws of the Member States and between the related legal proceedings may hamper the free movement of persons grew in particular after the EU had changed its character from a mere economic Community into a Union of citizens through the Maastricht Treaty of 1992.105 Particularly great differences existed between German and French law106 with respect to the jurisdiction in matrimonial matters, the recognition of divorce judgments, access rights and the return of abducted children and raised many practical difficulties.107 Due to the growing mobility of persons between the Member States as well as to the changed character of the EU the need for reducing these difficulties became, and was felt, more and more urgent. This situation led to an initiative to draft an EU Convention on matrimonial matters after 23 the model of the Brussels Convention of 1968 which like its successors, the Brussels I Regulation and the Brussels Ibis Regulation, had expressly excluded most family matters.108 After a process of preparation which started already in 1992, on 28 May 1998 the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters was concluded and approved by the Council.109 However, this Convention was never ratified by the Member States. The reason was that in the meantime, the Treaty of Amsterdam of 1997 had introduced Arts. 61 et seq. into the EC Treaty.110 Art. 65 EC Treaty provided a new basis for EU legislation concerning measures in the field of judicial cooperation in civil matters. The process of communitarisation of those Conventions commenced which were closely related to the EU like the Brussels Convention and the Rome Convention and fell into the scope of Art. 61 EC Treaty. The then still unratified Brussels II Convention had the same fate. It was decided to convert the contents of the Convention into a Council Regulation and to extend it to matters of parental responsibility for children of both spouses. After the Commission had presented a respective Proposal,111 on 29 May 2000 the Council adopted the slightly modified text as Regulation No. 1347/2000. This Brussels II

104 105 106

107 108 109 110 111

Art. 39 et seq. EC Treaty. See Report Borrás paras. 1et seq.; Niklas pp. 6 et seq. Arts. 14 and 15 of the French Code civil had the consequence that in French-German family cases proceedings in both countries could be simultaneously instituted creating the danger of contradicting judgments and that judgments need not be recognised. See Niklas pp 11 et seq. See Art. 1 (2) Brussels Convention and Brussels I Regulation. For the detailed history of the Convention see Report Borrás paras. 7 et seq. See thereon already supra Introduction para. 10. OJ EG 1999 C 247/1.

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Regulation entered into force on 1 March 2001.112 The Regulation became directly applicable in all – then fifteen – EU Member States except Denmark which does not participate in the measures under Art. 61 et seq. EC Treaty. 2. The way from Brussels II to Brussels IIbis 24 Only shortly after the entry into force of the Brussels II Regulation, work on the revision of

this Regulation commenced. This was initiated both by the unduly restrictive scope of the Brussels II Regulation and a French initiative for a Council Regulation on the mutual enforcement of judgments on rights of access to children.113 The restriction of the Brussels II Regulation that matters of parental responsibility were only covered insofar as children of both spouses were involved, were regarded as insensitive and unjustifiably narrow. With the benefit of hindsight, it can also be said that the rules on matrimonial proceedings (which remained almost unscathed and unaltered) were not felt to pose any major problems and did not cry out for their reform only so shortly after their introduction. The Brussels II Regulation was less criticised for what it contained than for what it did not contain.114 The revision of Brussels II was rapid. The Commission presented a Proposal in 2002.115 The Council adopted the text as Regulation No. 2201/2003 on 27 November 2003. The instrument has to be applied from 1 March 2005 on116 and supersedes the Brussels II Regulation.117 Again, Denmark is the only EU Member State to whom the Regulation does not apply. 25 Whereas practitioners were not given more than only a few years to accommodate to, and

become familiar with, the European “invader” which Brussels II was from their perspective, the fast superseding of one Regulation with the other caused doubled problems of intertemporal applicability. Even matters of terminology became unclear: Should one talk of Brussels IIbis (as this Commentary does) or Brussels IIA or Brussels IIa or Brussels II Revised? All of these expressions are in use today, and matters are made even worse if practitioners talk of “Brussels II” when they in fact mean the present, superseding Regulation which should bear a qualification distinguishing it from its predecessor. The terminological confusion becomes perfect and complete. In the field of PIL the Commission has learned the lesson, and both the Rome II and Rome I Regulations contain their name in their official title. International procedural law has not been so blessed yet.

26 Given the date when it became effective, the Brussels IIbis Regulation still only starts to make

its way in every-day court practice in the Member States.118 The number of reported cases has not yet exploded119 and appears to be no match for the flood generated by the Brussels I 112 113 114 115 116 117 118

119

18

Art. 46 Brussels II Regulation. See Recital 4 to the Brussels IIbis Regulation. See e.g. Schlosser, in: FS Dieter Schwab (2005), p. 1255. OJ C 203 E/155. Except Arts. 67–70 which entered into force already on 1 August 2004 (Art. 72). Art. 71 Brussels IIbis Regulation. See the national surveys in: Boele-Woelki/González Beilfuss (eds.), Brussels IIbis: Its Impact and Application in the Member States (2007). As yet there are only three ECJ decisions on Brussels IIbis: C (Case C-435/06) [2007] ECR I-10141; Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07) [2007] ECR I-10403; Inga Rinau (Case C-195/08) [2008] ECR I-5271.

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and Ibis Regulations. But nonetheless the tide appears to be rising and ever rising. The number of cases reported is mounting almost by the month. Perhaps the best proof for the rising importance of the Brussels IIbis Regulation are the English law reports: Few issues of FLR or FCR pass nowadays without a case earmarked “(Brussels II revised Regulation)” to be reported. IV. The Regulation as EU law 1. Direct applicability The Regulation constitutes secondary EU law. In contrast to Directives the Regulation is 27 directly applicable and needs no further implementation into national law (Art. 288 TFEU). As far as the Regulation reaches all Member States (except Denmark) are now immediately bound by it and have to apply it without any modification. This is also true for the new Member States (Bulgaria, Croatia and Romania) which joined the EU in 2007 and 2013 respectively when the Brussels IIbis Regulation had already entered into force. From the date their accession became effective (Bulgaria and Romania:1 January 2007; Croatia: 1 July 2013) the Regulation is directly applicable also there. The Regulation takes further precedence over all non-conforming national law. Any con- 28 tradicting rule of national law (of the Regulation Member States) cannot be applied any longer. It does not matter whether the conflicting national law has been enacted before or after the entering into force of the Regulation in the respective Member State. 2. EU external competence Where the EU possesses an internal competence it disposes as well over an implied external 29 competence as far as necessary for the effective use of the internal competence.120 This implied power of the EU concerns in particular the conclusion of treaties with third states on matters for which an internal competence exists. If the EU has made use of its internal competence, its implied external competence to conclude respective treaties may become even an exclusive competence.121 With respect to the Brussels IIbis Regulation the EU Member States are now no longer 30 entitled to conclude international treaties which are in conflict with the rules of the Regulation.122 In a Common Declaration of 14 December 2000 to the Brussels I Regulation the Council and the Commission have expressly adopted this view and stated that that Regulation does not hinder a Member State to conclude international treaties on matters falling within the scope of the Regulation as long as the treaties leave the Regulation untouched.123 120

121 122

123

Commission v. Council (ERTA) (Case 22/70) (1971] ECR 263; Opinion 1/76 (Rhine Navigation case) (1977] ECR 741 and standing practice of the Court; see thereto Oppermann § 30 note 19; Reich, Understanding EU Law, p. 43. See Oppermann § 30 note 21. In this sense though only with respect to the Brussels I Regulation: Kropholler/von Hein Art. 71 note 2; Layton/Mercer para. 11.060; Mankowski, in: Rauscher, Art. 71 note 3; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I VO note 21. See Common Declaration Sched. I no. 5 (German text publ. in IPRax 2001, 259, 261).

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The same principle must apply to the Brussels IIbis Regulation. Indirectly, the principle has been acknowledged by the Council’s decision to authorise certain Member States to ratify, or accede to, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children which is addressed in Art. 61 Brussels IIbis Regulation.124 Had the Member States still retained the competence to conclude international treaties in the field covered by the Brussels IIbis Regulation no such authorisation would be needed; it would be not even admissible. The Member States themselves can therefore ratify, or accede to, such international treaties on jurisdiction and the recognition and enforcement of judgments in matrimonial and parental matters which give priority to the Brussels IIbis Regulation in cases where this Regulation is applicable. The mentioned Hague Convention which is one of the practically relevant examples of a competing convention can therefore be adopted by the Member States of the Regulation because of the specific authorisation. But the EU as such would be also entitled to join this Convention. V. The scope of application of the Regulation 1. International scope of application 31 Unlike the Brussels Ibis Regulation which in essence is founded on the defendant being

domiciled in the EU,125 the Brussels IIbis Regulation does not strictly define an international scope of application or scope ratione loci.126 Yet this does not pose a major problem: In the field of jurisdictional rules the single heads of jurisdiction should be applied to the letter if and insofar as the case contains any cross-border element. If no head of jurisdiction points towards the court of any Member State the Regulation is inapplicable in this regard. The marked difference to the Brussels Ibis Regulation is the lack of some kind of central or basic rule like Art. 4 (1) Brussels Ibis Regulation. But the difference is less significant if one also takes into account that at least Art. 24 and Art. 25 Brussels Ibis Regulation define their own international scope of application respectively (with Art 26 Brussels Ibis Regulation joining in if the latter is so construed as to follow the lead of Art. 25 Brussels Ibis Regulation). Hence, the fundamental principle is the same under both the Brussels IIbis and the Brussels Ibis Regulations: Only the ensemble of the heads of jurisdiction in its entirety defines the international scope of application comprehensively.127 As some kind of thumb rule one might summarise that the Brussels IIbis Regulation is applicable if one of the parties (be it the applicant or be it the respondent) has his habitual residence within a Member State.128 The lone fact that the respondent is resident outside the EU does not trigger the automatic inapplicability of the Regulation.129 124

129

See the reference in EU Council ~ Factsheet ~ on the Council meeting of 6 June 2008 (http://www.consili um.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/101000.pdf). Save for Arts. 22, 23 Brussels I Regulation (possibly plus Art. 24 Brussels I Regulation depending on the respective reading of this rule) and with some extensions in Arts. 8 (2), 15 (2), 18 (2) Brussels I Regulation. Boiché, Gaz. Pal. 2005, 1641; Pataut, RCDIP 94 (2005), 516, 520. See Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), 27 November 2007, [2007] ECR I-10403, FamRZ 2008, 128 = NJW 2008, 207 para. 26. Nourissat, in: Fulchiron/Nourissat p. 1, 7. Questionable thus CA Lyon EuLF 2008, II-26, II-27.

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125

126 127

128

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For the purposes of recognition and enforcement it is clear that only decisions and orders 32 rendered by courts in Member States are encompassed and covered whereas the recognition and enforcement of decisions rendered by courts of non-Member States is governed by national law since the Regulation has not introduced uniform rules dealing with these issues. The rules on lis alibi pendens equally only apply in the event that both of the colliding sets of proceedings are established with Member State courts. 2. Territorial scope of the Regulation a) In general The territorial scope of application of the Regulation corresponds regularly to that of EU law 33 in general. Subject to the exceptions provided for by Art. 52 TEU (ex Art. 299 EC Treaty) the Regulation applies in the territory of all 26 present Member States now bound by the Regulation. This follows from Art. 52 TEU (ex Art. 299 (1) EC Treaty) for the Member States listed by that provision (except Denmark). Whether a certain place belongs to the territory of a Member State is not determined by the 34 Regulation or the EU Treaty but by the principles of public international law.130 Therefore, if the continental shelf before the coastline of a Member State still belongs to the territory of this state must be decided in conformity with the respective international treaties and, in their absence, with general principles of public international law.131 With respect to jurisdiction the necessary territorial element connecting the dispute with the 35 forum seized is regularly the habitual residence of one of the spouses or of the child; the habitual residence must be located in a Member State (Arts. 3 and 8). This basic rule is, however, varied for reasons of procedural justice and efficiency of litigation. The Regulation provides therefore also other connecting factors such as the nationality/domicile of both spouses (Art. 3(1)(b)), a choice of court agreement (Art. 12(1)) or the mere presence of the child (Art. 13). With respect to the recognition and enforcement of judgments the required territorial 36 connecting factor is that the judgment must have been rendered by a court located in the territory of a Member State to which the Regulation extends (Arts. 21(1) and 28). b) Application in the Member States In general the Regulation applies in the entire territory of the respective Member State and 37 also in those autonomous parts in Europe for whose external relations a Member State is responsible (Art. 355 TFEU, ex Art. 299 (4) EC Treaty). However, to some of the EU Member States there belong separate territories located outside Europe, for whose international relations the Member State is also responsible; in certain cases the Regulation applies even there. This depends on whether or not the territorial unit is listed in Annex II to the TFEU to which Art. 355 No. 2 TFEU (ex Art. 299 (3) EC Treaty) refers. Overseas territories listed there are not governed by EU law in its entirety but by the special association system 130 131

See Weber v. Universal Ogden Services Ltd. (Case C-37/00) [2002] ECR I-2013. Weber v. Universal Ogden Services Ltd. (Case C-37/00) [2002] ECR I-2013 (cook working on an oil drilling platform on the continental shelf in front of the Dutch coast = habitual place of employment under Art. 5(1) Brussels Convention in the Netherlands).

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provided for by Part IV of the TFEU (Arts. 198–204, ex Part IV of the EC Treaty, Arts. 182– 187). The Regulation does not apply in the listed territories. 38 On the other hand on the territory of some Member States are located separate territorial

units which enjoy a certain or full independence and neither EU law nor the Regulation applies there. It differs therefore considerably between the Member States whether and to which of their separate territorial units the Regulation extends. 1) Austria 39 The Regulation is in force in the entire territory of Austria.

2) Belgium 40 The Regulation is directly applicable in Belgium.

3) Bulgaria 41 The Regulation is in force in Bulgaria.

3a) Croatia 41a The Regulation is in force in Croatia.

4) Cyprus 42 The Regulation extends to the Greek part of Cyprus only. The British base areas on Cyprus –

Akrotiri and Dhekelia – are, however, excluded from the scope of the Regulation by virtue of Art. 355 (5) (b) TFEU (ex Art. 299 (6) (b) EC Treaty)132 and will most likely remain so after the Brexit has been finalised if only for a different reason namely the UK converting into a non-Member State. 5) Czech Republic

43 The Regulation is in force in the Czech Republic.

6) Denmark 44 As already mentioned Denmark abstained from the communitarisation of the measures

under Title V of Part III of the TFEU, Art. 67 et seq. (ex Title IV of Part III of the EC Treaty, Arts. 61 et seq.). The Regulation is therefore not applicable in Denmark and Denmark does not rank as Member State in the sense of the Regulation – neither for jurisdiction purposes nor for the recognition and enforcement of judgments of Member States.133

45 Denmark reserved this position in a Protocol on the Position of Denmark to the Treaty of

Amsterdam. Art. 1 of the Protocol states that Denmark does not participate in such measures and Art. 2 provides that such EU measures are “not applicable nor binding”. Whether Denmark and the EU will, as in the case of the Brussels I Regulation, negotiate a Convention which declares the Regulation applicable remains to be seen. At present, in relation to Denmark the Member States of the Brussels IIbis Regulation have to resort to the rules of their national international procedural law on matrimonial and parental matters in those cases where the Regulation requires the involvement of two Member States. 132 133

22

See also Layton/Mercer para. 11.070 (with respect to the Brussels I Regulation). Compare Recital 31 to the Regulation.

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7) Estonia The Regulation applies directly in Estonia.

46

8) Finland The Regulation applies to the entire territory of Finland. As is the case with EU law in 47 general the Regulation is therefore also in force on the Åland Islands (see Art. 355 No. 4 TFEU, ex Art. 299 (5) EC Treaty) which formally belong to Finland but enjoy a far-reaching autonomy. 9) France The Regulation is applicable in the entire European territory of France. But though France is 48 partly responsible for the external relations of Monaco neither EU law as such nor the Regulation applies in Monaco which in this respect is independent.134 Also Andorra,135 whose formal head of state is still the French president together with the Spanish Bishop of Seu d’Urgel, lies outside the territorial scope of the Regulation. According to Art. 355 No. 1 TFEU (ex Art. 299 (2) EC Treaty) EU Law and thus the 49 Regulation applies also to the French overseas departments (départements et régions d’outre mer). These departments comprise Guadeloupe, French Guiana, Martinique, Mayotte and Réunion but not the French overseas territories (collectivés d’outre mer), namely New Caledonia, French Polynesia, the Wassis and Futuna Islands, St. Pierre and Miquelon, the French Southern Antarctic territories. The latter territories fall under the regime of Art. 355 No. 2 TFEU (ex Art. 299 (3) EC Treaty) in connection with Annex II of the Treaty; they are governed by the specific association rules of Part IV of the Treaty (Arts. 198 et seq. TFEU, ex Arts. 182 et seq. EC Treaty). The Regulation does not apply there.136 10) Germany The application of the Regulation extends to the whole territory of Germany including the 50 territory of the former German Democratic Republic (GDR). The federal structure of Germany with 16 Bundesländer does not affect the applicability of the Regulation. 11) Greece The Regulation is in force in Greece including its islands.

51

12) Hungary Hungary belongs to the EU Member States where the Regulation is in force.

52

13) Ireland Like Denmark and the United Kingdom also Ireland reserved its right not to participate in 53 the adoption of measures enacted under Arts. 67 et seq. TFEU (ex Arts. 61 et seq. EC

134 135

136

See also Cass. RCDIP 88 (1999), 759 with note Bertrand Ancel. Andorra is de facto independent since 1993 only and was until that time governed by France and the Bishop of Seu d’Urgel. But both remain Andorra’s head of state. See Kropholler/von Hein Einl. note 25; Layton/Mercer para. 11.066 (both with respect to the Brussels I Regulation).

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Treaty).137 But like the United Kingdom – and unlike Denmark – Ireland has declared that it joins the judicial cooperation set forth by the Regulation.138 Therefore the Regulation (and the other instruments enacted under Arts. 67 et seq. and Art. 81 TFEU, ex Arts. 61 and 65 EC Treaty) is in force in Ireland. 14) Italy 54 The Regulation is in force in Italy but neither in the Vatican which is an independent state

nor in San Marino which itself is responsible for its external relations in the sense of Art. 355 (3) TFEU (ex Art. 299 (4) EC Treaty) although San Marino is also under the protective friendship of Italy.139 But Art. 63(3)(a) Brussels IIbis Regulation takes account of the “Concordato lateranense” of 11 February 1929 between the Holy See and Italy. Under this Treaty ecclesiastical court decisions can be recognised under certain conditions.140 15) Latvia 55 Latvia is an EU Member State where the Regulation is in force.

16) Lithuania 56 Like in all new EU Member States also in Lithuania the Regulation applies.

17) Luxembourg 57 In Luxembourg the Regulation is in force.

18) Malta 58 The Regulation is in force in Malta. Art. 63(3)(c) Brussels IIbis Regulation recognises for

Malta like for Italy, Portugal and Spain the respective Treaty with the Holy See.141 19) The Netherlands 59 The Regulation extends to the European territory of the Netherlands but neither to Aruba

nor the Netherlands Antilles for which the association system of Art. 355 (2) TFEU (ex Art. 299 (3) EC Treaty) in connection with Schedule II to the Treaty applies.142 20) Poland 60 The Regulation applies directly in Poland.

21) Portugal 61 The Regulation is directly applicable in Portugal and, due to the express provision of Art. 355

(1) TFEU (ex Art. 299 (2) EC Treaty), also on the Azores and Madeira which belong to Portugal. The proviso in Art. 355 (1) TFEU that specific measures may be applied to the 137

138 139

140 141 142

24

See Protocol on the position of the United Kingdom and Ireland to the Treaty on the European Union and the EC Treaty. See also Recital 30 to the Brussels IIbis Regulation. See Kropholler/von Hein Einl. note 22; Layton/Mercer para. 11.067 (both with respect to the Brussels I Regulation). For a detailed discussion see infra the comment to Art. 63 (Mankowski). See further the comment to Art. 63 (Mankowski). Also Kropholler/von Hein Einl. note 26; Layton/Mercer para. 11.068 (with respect to the Brussels I Regulation).

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Azores and Madeira does not affect the applicability of the Regulation there.143 Like for Italy, Malta and Spain Art. 63 (1) Brussels IIbis Regulation recognises the specific Regulation provided for under the Concordat of 7 May 1940 between the Holy See and Portugal.144 22) Romania The Regulation is in force in Romania.

62

23) Slovakia The Regulation is directly applicable in Slovakia.

63

24) Slowenia In Slowenia the Regulation is in force.

64

25) Spain The Regulation is applicable in Spain, in Gibraltar (however, Gibraltar being under British 65 rule)145 and also on the Canary Islands which belong to Spain (Art. 355 (1) TFEU, ex Art. 299 (2) EC Treaty). The same is true for the Spanish exclaves Ceuta and Melilla in Morocco.146 As is the case with Italy, Malta and Portugal, the Agreement of 3 January 1979 between the Holy See and Spain allows the recognition of ecclesiastical annulment decisions under certain conditions. 26) Sweden The Regulation applies directly to the whole territory of Sweden including the islands Got- 66 land and Öland. 27) United Kingdom Also the United Kingdom reserved its right not to participate in the adoption of measures 67 enacted under Arts. 67 et seq. TFEU (ex Arts. 61 et seq. EC Treaty) – like Denmark and Ireland did.147 But in contrast to Denmark the United Kingdom as well as Ireland148 declared to join the judicial cooperation set forth by the Regulation.149 Therefore the Regulation (and the other instruments enacted under Arts. 67 et seq. and Art. 81 TFEU, ex Arts. 61 and 65 EC Treaty) is in force in most parts of the United Kingdom, in particular in England and Wales, Northern Ireland and Scotland.150 It is also in force in Gibraltar151 but, due to Art. 355 (5) (c) TFEU (ex Art. 299 (6) (c) EC Treaty), not on the Channel Islands (Jersey, Guernsey, Al143

144 145

146 147

148 149 150 151

See also Kropholler/von Hein Einl. note 27; Layton/Mercer para. 11.069 (both with respect to the Brussels I Regulation). See further the comment to Art. 63 (Mankowski). See the Accord of 18 October 2000 between Spain and the United Kingdom (OJ 2001 C 13/1 and BOE 2001, 2508); see further Calvo Caravaca/Carrascosa González p. 67; Kropholler/von Hein Einl. note 29; Layton/Mercer para. 11.070. Calvo Caravaca/Carrascosa González p. 67; Kropholler/von Hein Einl. note 28. See Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and the EC Treaty. See supra Introduction note 53. See also Recital (30). Kropholler/von Hein Einl. note 29; Layton/Mercer para. 11.070. See supra Introduction note 65.

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derney, Sark) and not on the Isle of Man though these islands are British dependencies.152 Also the British bases Akrotiri and Dhekelia on Cyprus do not fall within the territorial scope of EU law (Art. 355 (5) (b), ex Art. 299 (6) (b) EC Treaty) and are thus excluded from the scope of the Regulation.153 68 In contrast to France the Regulation does also not extend to territories outside Europe for

whose international relations the United Kingdom is still responsible. 68a Once Brexit will become effective, at present it appears most likely that the United Kingdom

will not be a Member State of the Regulation anymore.154 Art. 3 (1) (b) will then lose its main case.155 Judgments rendered by UK courts will not enjoy the benefit of automatic recognition in the other Member States anymore.156 This might severely affect and diminish international divorce business in London.157 A safety new revitalising a multilateral Convention is not at hands since the Brussels II Convention has never entered into force.158 Bilateral Treaties on recognition and enforcement between Member States of the EU and the United Kingdom which had long been forgotten in the age of the Brussels I, Ibis and IIbis Regulations might be revitalised159 and save the day in the post Brexit-future. New life might be inflated into these Treaties. What had long been relegated to an ever more distant past might get a new lease on life. The bilateral Treaties will come alive again, like the Rome Convention, or rather the Contracts (Applicable Law) Act 1990, is revitalised in the UK’s PIL of contracts, tot he courtesy of Art. 24 Rome I Regulation,160 and like the Brussels Convention is to govern again the free movement of judgments in civil and commercial matters between the UK and the EU.161 A core question needs to be answered in the affirmative, though:162 that the bilateral Treaty between the UK and the respective EU Member State really covers matters of divorce or parental responsibility, too. This is far from being guaranteed and has to be checked very carefully and separately for every single bilateral Treaty. Another safety net might be the 1970 Hague Convention on the Recognition of Divorces and Legal Separations,163 but depending on whether the Member State of the EU concretely concerned has also ratified it like the United Kingdom did.164 Parental responsibility would be outside the scope of that Convention anyway. Intertemporal questions as to whether the Brussels IIbis Regulation should govern the recognition and enforcement of judgments rendered by UK

164

Kropholler/von Hein Einl. note 29; Layton/Mercer para. 11.070. Kropholler/von Hein Einl. note 29; Layton/Mercer para. 11.070. Rieck, NZFam 2016, 878 (878); Lein, YbPIL 17 (2015/16), 33, 44; Ungerer, in: Kramme/Baldus/SchmidtKessel (eds.), Brexit und die juristischen Folgen (2017), p. 297, 307–308. Rieck, NZFam 2016, 878 (878). Rieck, NZFam 2016, 878 (878). Basedow, ZEuP 2016, 567, 572; Hess, IPRax 2016, 409, 416. See Ungerer, in: Kramme/Baldus/Schmidt-Kessel (eds.), Brexit und die juristischen Folgen (2017), p. 297, 308. Basedow, ZEuP 2016, 567, 572; Hess, IPRax 2016, 409, 416. Hess, IPRax 2016, 409, 417; Dickinson, (2016) 12 JPrIL 195, 203–204. Dickinson, (2016) 12 JPrIL 195, 204–205. Contra Hess, IPRax 2016, 409, 413. See generally Basedow, ZEuP 2016, 567, 572. Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations http://www. hcch.net/en/instruments/conventions/full-text/?cid=80. Hess, IPRax 2016, 409, 416.

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152 153 154

155 156 157 158

159 160 161 162 163

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courts before the exact date to which Brexit will become effective, should be answered in the affirmative.165 3. Material scope of the Brussels IIbis Regulation a) Matrimonial matters aa) Generalities The objective of the Brussels IIbis Regulation is to establish jurisdictional rules to regulate 69 the conduct of proceedings for judicial separation, divorce or nullity within the EU.166 Consequential issues concerning children are included, but consequential or ancillary financial issues are not.167 Despite the fact that they might be interrelated, the Regulation does not affect issues such as the fault of the parties to divorce proceedings, property consequences of the marriage or its dissolution, maintenance obligations168 or any other ancillary measures.169 Furthermore, the Regulation is limited to civil matters by virtue of Art. 1 (1). Yet this has to 70 be read and interpreted in the light of Art. 1 (2).170 The latter comprises i.a. (d), the placement of a child in a foster family or in institutional care. Ordinarily this is implemented either by a court order or by the order of a public body, may it be called child or youth care institution or else. This has to be taken into account sincerely when dealing with the notion of “civil matters” in Art. 1 (1).171 bb) Not: maintenance In the years before 18 June 2011, jurisdiction regarding maintenance had to be ascertained 71 by virtue of the Brussels I Regulation, namely its Art. 2 and its Art. 5 (2). This applied equally to maintenance benefiting (divorced) spouses and to maintenance benefiting children. Nowadays, i.e. since 18 June 2011, maintenance is subject to an own Regulation172 providing 165 166

167

168 169 170 171 172

Hess, IPRax 2016, 409, 416. Re G (children) (foreign contact order: enforcement) [2004] 1 FLR 378, 390 = [2004] 1 FCR 266, 278 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1037 (C.A., per Thorpe L.J.); Re G (children) (foreign contact order: enforcement) [2004] 1 FLR 378, 390 = [2004] 1 FCR 266, 278 (C.A., per Thorpe L.J.). OLG Nürnberg FamRZ 2005, 1691, 1692. Re A (foreign contact order: jurisdiction) [2004] 1 FLR 641, 648 (F.D., Sumner J.). Hof Gent R. W. 2005–2006, 432 et seq. Hof Gent R. W. 2005–2006, 432 et seq. Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ EU 2009 L 7/1. Commented upon by e.g. Vlas, WPNR 6794 (2009), 293; Nademleinsky, EF-Z 2009, 115; Nademleinsky, EF-Z 2011, 130; Fucik, iFamZ 2009, 245; Bambust, J. trib. 2009, 381; Nourissat, Procédures juin 2009, p. 7; Pocar/Viarengo, RDIPP 2009, 805; Marino, NGCC 2009 II 599; Castellanta/Leandro, NLCC 2009, 1051; Vanderkerckhove, Rev. dr. UE 2010, 57; Heger, ZKJ 2010, 52; Eames, [2011] Fam. L. 389; Finger, FuR 2011, 254; Bertrand Ancel/Muir Watt, RCDIP 99 (2010), 457; Heger/Selg, FamRZ 2011, 1101; Villata, Riv. dir. int. 2011, 731. The road to this Regulation officially started with the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations of 15 December 2005, COM (2005) 649 final.

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for own rules on jurisdiction, recognition and enforcement plus (by its Art. 15 referring to the Hague Maintenance Protocol)173 applicable law. The rules on jurisdiction remain basically unaltered compared to the Brussels I and Ibis regime but for replacing the debtor’s domicile with the debtor’s habitual residence.174 In any event, maintenance does not fall within the material scope of application of the Brussels IIbis regime.175 cc) Not: property consequences 72 Property consequences of the dissolution of a marriage still are a domain reserved for

national law.176 For the time being, they are a lacuna in the overall EU system for they do not fall under Brussels IIbis and are expressly excluded from Brussels Ibis by virtue of its Art. 1 (2) (a).177 Only rarely and occasionally they might rather, by accident of a letting agreement between the former spouses, come under Art. 24 (1) Brussels Ibis Regulation.178 To be properly included in an overall EU regime, property consequences as such have to await the becoming effective of the Property Consequences Regulations on 29 January 2019.179 dd) Not: celebration and formation of marriage

73 The Brussels IIbis Regulation does not cope with the celebration and formation of marriages,

either, but only with the dissolution of marriages. This holds true even if registration or any other formal act by a court is required in the respective Member State in order to celebrate the marriage formally. Even such acts are entirely outside the scope of the Regulation but for their later revocation on judicial appeal. This restrictive approach is sustained but for the dissolution of marriages on grounds that the celebration or formation of the marriage has been defective ab initio. ee) Marriage 74 Marriage does not feature amongst the terms expressly defined by Art. 1. Yet it goes without

saying that marriage is an absolutely fundamental term for the entire Brussels IIbis Regulation. It raises difficult and delicate issues of characterisation,180 in particular generated by two phenomena of modern times: the same-sex marriage as recently introduced by Dutch law,181 Belgian law,182 or Spanish law183 on the one hand, and registered partnerships between

181

On this e.g. Bonomi, in: Recueil de travaux en l’honneur du Suzette Sandoz (Zürich 2006), p. 201; Dörner, in: FS Koresuke Yamauchi (2006), p. 81. Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations www.hcch.net. Commented upon by the authors referenced in fn. 29 and e.g. Azcáarga Monzonís, REDI 2008, 491; Malatesta, RDIPP 2009, 829; Borrás, AEDIPr 2007, 1305 (published 2009). Art. 3 (a) Draft Proposal, COM (2005) 649 final; Gavin Smith, [2006] Fam. L. 466, 467; Gavin Smith, June [2006] IFL 72 et seq. OLG Nürnberg FamRZ 2005, 1691, 1692. OGH 13 August 2002–1 Ob 140/02y; Vlas/Ibili, WPNR 6714 (2007), 532, 543. Contra insofar as provisional measures under Art. 12 are at stake Lydia Fuchs/Tölg, ZfRV 2002, 95, 98 et seq.; Lydia Fuchs, ecolex 2003, 587. See only Arenas García, REDI 2004, 324, 325; de Vareilles-Sommières, RCDIP 94 (2005), 112, 116. See Rb. Maastricht NIPR 2005 Nr. 62; Vlas/Ibili, WPNR 6714 (2007), 532, 543 fn. 51. Supra Introduction note 14 (Magnus/Mankowski). See in more detail Art. 1 notes 22 (Pintens). Wet van 21 december 2000 tot wijziging van Boek I van het Burgerlijk Wetboek in verband met de

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173

174

175 176

177 178 179 180

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partners of different sexes like the heterosexual variation of the PACS under French law184 on the other hand. In any event, registered partnerships between partners of the same sex are not covered by the Brussels IIbis Regulation,185 nor are informal cohabitations and alike. Perhaps, a short reminder appears useful, though, not to rely too heavily on decisions of the CJEU preceding those recent developments and thus referring to a consensus about the core of marriage which might not exist between Member States anymore.186 b) Parental responsibility aa) General material scope Judicial management and control of issues concerning children is generally extensive, fre- 75 quently arising before the pronouncement of the decree and frequently continuing long after the pronouncement of the decree. This can only be sensibly seen as a continuous process.187 An order conferring on one parent custody or residence might be more easily classified as a unique determination encapsulated in a single order, but orders for contact or access generally have to be revisited and revised to reflect change of circumstance. If the Brussels IIbis Regulation is to be effective, orders of the court exercising jurisdiction must be enforceable whether the order is embodied in the decree that changes the marital status of the parents or whether in an order pre-dating or post-dating the decree.188 bb) Not: filiation or questions of parenthood or adoption Whether someone is father or mother of the child in question is outside the scope of the 76 Brussels IIbis Regulation. Questions of filiation, adoption and parenthood as such might present themselves but are not expressly dealt with in the Regulation. Insofar as they are mere preliminary issues and not at the core of the matter they do not influence the characterisation of the main issue and cannot disqualify an issue which on its own merits falls within the scope of the Regulation. But the Regulation does definitely not govern the recognition of adoption decrees, decisions on filiation or parenthood as such.189 4. Temporal scope of application The Regulation applies to all proceedings instituted, documents drawn up, agreements 77 concluded and judgments given on or after the day it entered into force in the Member

182

183

184 185 186 187

188

189

openstelling van het huwelijk voor personen van hetzelfde geslacht, Staatsblad 2001, 9; Wet van 29 maart 2001, Staatsblad 2001, 160; today see Art 1:30 NBW. Loi du 13 février 2003 ouvrant le mariage à des personnes de meme sex et modifiant certaines dispositions du Code civil, Moniteur belge 2003, 9880; today see Art. 143 Code civil. Art. 44 Abs. 2 Código Civil, introduced by Ley 13/2005 de 1 de julio por la que se modifica el Código Civil en materia de derecho a contraer matrimonio, BOE núm 157 de 2 julio 2005, p. 23632. Arts. 515-1–515-7 Code Civil idF durch Loi no 99–944 du 15 novembre 1999, JO 1999, 16959. Rb. Roermond NIPR 2001 Nr. 188 p. 327. Calò, Fam. 2005, 509, 521. Re G (children) (foreign contact order: enforcement) [2004] 1 FLR 378, 390 = [2004] 1 FCR 266, 278 (C.A., per Thorpe L.J.). Re G (children) (foreign contact order: enforcement) [2004] 1 FLR 378, 390 = [2004] 1 FCR 266, 278 (C.A., per Thorpe L.J.). See only Geimer, IPRax 2004, 419.

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State whose courts are seized (Art. 64). For the 24 ‘old’ Member States (except Denmark) this date was 1 March 2005 except for Arts. 67–70 which entered into force already on 1 August 2004 (Art. 72). For the ‘new’ Member States Bulgaria and Romania which acceded to the EU only as of 1 January 2007 this date decides and for Croatia 1 July 2013.190 Special provision is made for the recognition of judgments which were rendered during the lifetime of the former Brussels II Regulation.191 5. Personal scope of application 78 With respect to matrimonial matters the Regulation does not prescribe specific personal

requirements. However, in contrast to the Brussels Ibis Regulation (Art. 4(1)) the nationality of the parties plays a role and can found jurisdiction (see Art. 3(1)(b) Brussels IIbis Regulation). In regard of matters of parental responsibility the qualification as child is necessary. However, the child’s nationality is irrelevant (Art. 8).192 VI. Interpretation of the Regulation 1. Independence from national concepts 79 The Brussels IIbis Regulation is an EU act. Therefore, an autonomous, genuinely European

interpretation of its rules must be exercised and implemented.193 The competence of the CJEU to interpret it authoritatively and finally, serves as the main and ultimate safeguard. National courts must refrain from referring to national concepts or national case-law, how similar the terms interpreted there might sound compared to the respective terms of the Regulation. This applies even if the forum State has implemented an own Act in order to bring its national law in line with the Regulation as the United Kingdom has done by virtue of amendments of the Domicile and Matrimonial Proceedings Act 1973. Not even a rule like s. 5 (2) (a) Domicile and Matrimonial Proceedings Act 1973 can be interpreted in a “nationalistic”, non-European manner.194 Courts must not succumb to such inherent temptations. Neither must courts settle with less than they could achieve. Courts must not be content with poor quality in deciding cross-border cases.195 80 In particular the central concepts are EU concepts, e.g. that parental responsibility is under-

stood in a wide sense germane to the Brussels IIbis (and previously the Brussels II) Regulation.196 Even if a term used in the Regulation is not expressly defined and neither judge nor 190 191 192 193 194

195

196

30

See further the comment to Arts. 64 and 72 (Mankowski). See the comment to Art. 64 (Mankowski). Rausch, FuR 2005, 53 (56); Rauscher, in: Rauscher, Art. 8 Brussels IIbis note 3. See C (Case C-435/06) [2007] ECR I-10141 para. 46. Unfortunately such interpretation by reference to older national case-law, though stemming from an international context, was undertaken by Armstrong v. Armstrong [2003] 2 FLR 375, 378–383 (F.D., Dame Elizabeth Butler-Sloss P.); see also C v. FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 FLR 317, 342–351 (F.D., Judge Rex Tedd Q. C.). González Beilfuss, Rev. Jur. Cat. 2011, 731, 741 (criticising the poor quality of Spanish decisions on the Brussels IIbis regime). C (Case C-435/06), [2007] ECR I-10141 para. 49 et seq.; see also Carrascosa González, REDI 2004, 225, 229 et seq.

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lawyer enjoy the assistance of such definition (as for instance with regard to the paramount connecting factor of “habitual residence”), an autonomous EU notion must prevail.197 This must distinguish between “habitual residence” on the one hand and simple or mere “residence” (without the additional qualification of being “habitual”) on the other hand.198 Likewise, one and the same person cannot be habitually resident in two or more countries simultaneously.199 2. Systematic and purposive interpretation The construction of individual Articles of the Brussels IIbis Regulation cannot be effected in 81 complete isolation, but only in the context of the Regulation as a whole200 and in the light of the objectives underpinning it, the latter often to be found in the Recitals.201 A purposive reading not sticking to the letter is mandatory and the correct methodological maxim.202 3. Comparison with the Brussels I/Ibis Regulations Another means of interpreting some provisions contained in the Brussels IIbis Regulation is 82 to have a watchful eye on their counterparts in the Brussels I/Ibis Regulations as well as to the case-law of the CJEU regarding these counterparts in the Brussels I/Ibis Regulations or previously in the Brussels Convention.203 The quest for uniform interpretation of EU acts calls for this method as far as possible.204 Yet, evidently these auxiliary means are only at hands where a counterpart in the Brussels I/Ibis regime really exists. Furthermore, these means have to be employed cautiously in order not to fall victim to a “false friend” pre197

198 199

200

201 202

203

204

Cass. civ. 14 December 2005 – Moore c/McLean; Ikimi v. Ikimi [2001] Fam. 72 [31] = [2001] 2 FLR 1288 (C.A., per Thorpe L.J.); C v. RC (Brussels II: Free-Standing Application for Parental Responsibility) [2004] 1 FLR 317 [98] (F.D., Deputy Judge Tedd Q. C.); L-K v. K (No 2) [2007] 2 FLR 729, 737 [38] (F.D., Singer J.); Marinos v. Marinos [2007] EWHC 2047 (Fam) para. 18 (F.D., Munby J.) (both with reference to Pedro Magdalena Fernández v. Commission (Case C-452/93P), [2004] ECR I-4295, I-4308 para. 22); Carrascosa González, REDI 2004, 225, 234; Lamont, (2007) 3 JPrIL 261; Ricci, in: Malatesta/Bariatti/Pocar p. 207; Mellone, RDIPP 2010, 685; Mankowski, GPR 2011, 209. V v. V (Divorce Jurisdiction) [2011] 2 FLR 778, 787–789 [35]-[48] (F.D., Peter Jackson J.). L-K v. K (No 2) [2007] 2 FLR 729, 737 [38] (F.D., Singer J.); V v. V (Divorce Jurisdiction) [2011] 2 FLR 778, 787 (36)-(37) (F.D., Peter Jackson J.). Inga Rinau (Case C-195/08), [2008] ECR I-5271 paras. 59 et seq., in particular para. 83: systematic and purposive interpretation of Art. 42; C v. FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 FLR 317, 325 (F.D., Judge Rex Tedd Q. C.). Bailey-Harris, [2004] Fam. L. 103. Inga Rinau (Case C-195/08) [2008] ECR I-5271 para. 83; AD v. CD and AD [2008] 1 FLR 1003, 1013 (C. A., ct. judgm. delivered by Thorpe L.J.); Re D (a child) (international recognition) [2016] EWCA Civ 12 [19], [2016] 2 All ER 770 (C.A., per Ryder L.J.). See ECJ in C (Case C-435/06), [2007] ECR I-10141 paras. 38 et seq.: “civil matters” in Art. 1 (1) must be interpreted in the same way as under the Brussels I Regulation. See Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038, 1039 et seq. (C.A., per Thorpe L.J. and Lawrence Collins J. respectively); Wermuth v. Wermuth (No. 1) [2003] 1 FLR 1022, 1028 (F.D., Bracewell J.). See C (Case C-435/06), [2007] ECR I-10141 paras. 38 et seq.; in general Kropholler/von Hein, in: FS 75 Jahre Max-Planck-Institut für Privatrecht (2001), p. 583; Overkerk, in: Voorkeur voor de lex fori – Symposium ter gelegendheid van het afscheid van prof. mr. Th. M. de Boer (2003), p. 59.

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tending to be of the same meaning in both instruments whereas in fact the different contexts require different interpretations. Tiny details can gain unforeseen importance in critical cases off the main roads. Yet concluding, it ought to be stressed again that it would be foolish to dispose lightly of the treasure contained in the Brussels I regime and the experiences made in that realm. Prospective adventure trips might turn into entertainment journeys where Brussels I/Ibis has already paved the ways. On the other hand, Brussels I/Ibis operates in matters of property, and Brussels IIbis employs partially different and idiosyncratic precepts, in particular the best interests of the child in matters of parental responsibility.205 Insofar Brussels IIbis has its specific and germane particularities.206 4. Systematic interpretation within the entire system of EU law 83 The Brussels IIbis Regulation is not a stand-alone. This holds true not only with regard to its

sister Act, the Brussels Ibis Regulation, but also with regard to the system of EU law in its entirety. The overall systematic context might sometimes trigger valuable hints as to the interpretation of certain notions which are common in EU law or were also used in other (and older) pieces of secondary EU legislation. The main example is the notion of “habitual residence”. Here it might be quite helpful to take into account cases decided by the CJEU or the Tribunal in other areas of EU law207 dealing with either “habitual residence” as such or similar notions like “permanent domicile” or alike.208 However, one must beware of false friends who might work quite well in their specific context, but in their specific context only, and cannot be transferred in substance to the areas covered by the Brussels IIbis regime.209 What is fitting for tax law or the law of social security must not be equally fitting for international family law. 5. Travaux préparatoires 84 As with any EU Regulations the travaux préparatoires are scarce. There are the official

reasonings of the respective Proposals by the Commission.210 And one can endure the dutiful task of pursuing the fate of single proposals throughout the genesis of the Regulation. Yet there is a particularity with regard to the Brussels II Regulation and consequentially to the Brussels IIbis Regulation: Since the Brussels II Regulation was based on a Convention project stranded in the 1990s there exists – in the good tradition of the Reports Jenard and Schlosser accompanying the Brussels Convention – an Explanatory Report accompanying the Convention project drafted by Alegría Borrás Rodriguez. This Report should be recognised as travail préparatoire and as a very valuable means of interpretation.211 But it should

210

A-G Jääskinen, ECLI:EU:C:2010:578 para. 95. Motte, J. dr. eur. 2016, 311 at 311. See e.g. Pedro Magdalena Fernández v. Commission (Case C-452/93P), [2004] ECR I-4295; Benzler v. Commission (Case T-63/91), [1992] ECR II-2095; Herrero Romeu v. Commission (Case T-298/02), [2005] ECR II-4599. Report Borrás para. 32. A (Case C-523/07), [2009] ECR I-2805, I-2846 para. 36; A-G Kokott, [2009] ECR I-2808, I-2818 to I-2820 paras. 32–37; A-G Cruz Villalón, Opinion of 6 December 2010 in Case C-497/10 PPU para. 64; Mellone, RDIPP 2010, 685, 703, 711 et seq.; Pirrung, IPRax 2011, 50, 52 et seq.; Mankowski, GPR 2011, 209, 211 et seq. See fn. 106, 110.

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205 206 207

208 209

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also be borne in mind that there have already been minor changes from the Convention to the Brussels II Regulation and, foremost, that this Report cannot cover any changes and alterations brought about by the Brussels IIbis Regulation. 6. Not: Practice Guide For practical purposes and in particular for practitioners’ purposes, the Practice Guide212 85 drawn up by the General Directorate Justice and Home of the EU Commission, might provide most helpful guidance.213 Yet it must not be treated as a constitutive means of any kind since the Commission is not vested with any power to interpret the Brussels IIbis Regulation authoritatively, such competence being vested in the CJEU exclusively. The Practice Guide is – quite unlike the Regulation itself214 – not binding upon any court or practitioner. It does not possess any force of law whatsoever. Its own self-understanding does not go beyond being a vademecum. Furthermore, it is not concerned with matrimonial matters but only with issues of parental responsibility and has thus only relevance for but one part of the entire regime. The Practice Guide certainly is some kind of persuasive authority but nothing more than 86 that. It does not have the force of law but commands great respect given that it was issued by the Commission approving the drafts written by a committee of experts.215 VII. The reference procedure 1. In general Without a central and finally competent court a uniform understanding and application of a 87 legal instrument in different jurisdictions can hardly be achieved, let alone be upheld over a longer period of time. The uniform interpretation and application of the Regulation is safeguarded by the European Court of Justice. The CJEU is competent to finally and solely decide all questions concerning the interpretation of the Regulation by a preliminary ruling which is binding on the parties of the original dispute. The CJEU’s competence follows directly from Art. 267 TFEU (ex Art. 234 EC Treaty). A separate protocol granting the CJEU this competence as under the former Brussels Convention of 1968216 is unnecessary. General EU law provides for a special reference procedure to the CJEU; the Court then renders in the form of a preliminary ruling a final decision on the referred interpretation issue: under Art. 267 TFEU (ex Art. 234 EC Treaty) any national court may and any national court of last instance must refer questions of interpretation of EU law to the European Court of Justice if

211

212 213

214 215 216

See only L-K v. K (No 2) [2007] 2 FLR 729, 738 (F.D., Singer J.); Marinos v. Marinos [2007] EWHC 2047 (Fam) (25) et seq., (33) (F.D., Munby J.). http://europa.eu.int/justice_home/ejn/parental_resp/parental_resp_ec_vdm._en.pdf. AD v. CD and AD [2008] 1 FLR 1003, 1010 (C.A., ct. judgm. delivered by Thorpe L.J.); Ranton, March [2005] IFL 39, 43. See only Rb. Maastricht, sector kanton, locatie Heerlen NIPR 2006 Nr. 18 p. 35. AD v. CD and AD [2008] 1 FLR 1003, 1010 (C.A., ct. judgm. delivered by Thorpe L.J.). Protocol on the Interpretation of the Brussels Convention by the European Court of Justice of 3 June 1971.

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the question is relevant for the decision of the dispute, if the question is still undecided by the CJEU and if the answer is not clear beyond reasonable doubt.217 88 However Art. 68 EC Treaty specified and qualified the reference procedure for all legislative

measures taken under Art. 65 EC Treaty on which provision also the Brussels IIbis Regulation is based. Art. 68 EC Treaty restricted considerably the ambit of Art. 234 EC Treaty.218 Fortunately, Art. 68 EC Treaty was not retained in the Treaty of Lisbon and dropped out of the TFEU with Art. 267 TFEU now operating without any restriction in the field relevant for the Brussels IIbis Regulation. 2. Requirements of the reference procedure under Art. 267 TFEU a) No interpretation of national law 89 According to Art. 267 TFEU the reference procedure concerns only the interpretation of EU

law. Questions of national law even if disguised in the reference question cannot be referred.219 Therefore a reference is generally inadmissible if it asks for the interpretation of provisions of the Regulation which have been voluntarily implemented into national law, for instance into national interlocal procedural law.220 Also, where the Regulation explicitly refers to national law the CJEU cannot be called upon to interpret the provisions of the applicable national law or whether those provisions conform to the Regulation; however the Court is competent to determine the precise scope of the provision of the Regulation which refers to national law.221 Likewise a referral to the CJEU is admissible to determine the meaning and scope of the notion “public policy” where the Regulation uses the term like in Arts. 22 (a), 23 (a) (though the Court is not competent to decide on the contents of the public policy of the applicable national law).222 Also, the question whether an expression of the Regulation is to be interpreted autonomously or refers to national law can itself be referred to the CJEU.223 b) Pending procedure 90 An admissible referral further requires that the interpretation issue arises during a pending

proceeding. The proceeding must have been formally begun and must not have been already ended, by judgment or settlement, before the referring court. The nature of the proceedings – contentious or non-contentious – and also the nature of the court or tribunal is irrelevant.224 Even in proceedings on preliminary measures, including protective measures, a referral is

224

CILFIT v. Ministero della Sanità, (Case 283/81), (1982] ECR 3415. As to the details see infra Introduction note 93. Kleinwort Benson Ltd. v. Glasgow City Council (Case C-346/93), [1995] ECR I-615; but see also BIAO v. Finanzamt für Großunternehmen Hamburg (Case C-306/99), [2003] ECR I-00001; see further Kropholler/von Hein Einl. note 32; Ansgar Staudinger, in: Rauscher Einl. Brüssel Ia-VO note 47. See Kleinwort Benson Ltd. v. Glasgow City Council (Case C-346/93), [1995] ECR I-615. See also Kropholler/von Hein Einl. note 32. See Krombach v. Bamberski (Case C-7/98), [2000] ECR I-1935, para. 23; Renault v. Maxicar (Case C-38/ 98), [2000] ECR I-2973, para. 28. An example is Industrie Tessili Italiana v. Dunlop AG (Case 12/76), [1976] ECR 1473 concerning the question whether the place of performance is to be determined autonomously or by redress to the applicable national law and deciding that question in the latter sense. See Art. 1 (1) pr.

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217 218 219

220 221 222

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admissible since otherwise the interpretation of Art. 20 and its relation to other provisions of the Regulation could not be finally decided by the CJEU. But again, interpretation questions of national law to which Art. 20 also refers cannot be brought before the Court. The court or tribunal which refers the issue to the CJEU must, however, have acted in the 91 original dispute in its judicial capacity. Where it acted merely in an administrative capacity, for instance as a mere registry, it is neither entitled nor obliged to refer.225 Arbitration courts do not belong to the courts meant by Art. 267 TFEU (ex Art. 234 EC 92 Treaty). The provision concerns only state courts. Arbitration as such may fall outside the scope of the Regulation even despite the lack of a pendant to the express exclusion as contained in Art. 1 (2) (d) Brussels Ibis Regulation. Arbitration courts are therefore not entitled to referrals to the CJEU.226 c) Court of last instance Art. 68 (1) EC Treaty significantly restricted the number of courts which could make a 93 reference to the CJEU. Fortunately, under Art. 267 TFEU (ex Art. 234 EC Treaty) any court of a Member State is entitled to refer questions of interpretation either of EU law or of the Convention to the European Court of Justice for a preliminary ruling, and the courts of last instance play a special role insofar as they are obliged to refer. Under Art. 68 (1) EC Treaty only courts of last instance could make references to the CJEU. References of all other courts were inadmissible. The restricted access of national courts to the CJEU due to Art. 68 EC Treaty quite rightly met with considerable and severe critique.227 The TFEU remedied this shortcoming by deleting Art. 68 EC Treaty. The court or tribunal which is obliged to refer the issue to the CJEU must be a court against 94 whose decision no further remedy is available. This is almost unanimously understood in the sense that it is necessary but also sufficient that in the concrete case no ordinary judicial remedy would be given when the referring court renders its final decision.228 It is not necessary that there would be generally – in abstracto – no judicial remedy against a decision of the referring court. The national law prescribes which ordinary remedies lie. In any case the highest national courts in civil matters are obliged to refer to the CJEU.229 It 95 does not matter that their decisions may be subject to attack by an eventual remedy to the constitutional court of the country.230 But even lower courts can make a reference insofar as 225 226

227

228

229

230

HSB-Wohnbau GmbH (Case C-86/00), [2001] ECR I-5353. “Nordsee” Deutsche Hochseefischerei GmbH v. Reederei Mond Hochseefischerei AG & Co. KG u. Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co. KG (Case 102/81), [1982] ECR 1095; Eco Swiss China Time Ltd. v. Benetton International (Case C-126/97), [1999] ECR I-3055. For further critique see Basedow ZEuP 2001, 437; Kropholler, in: 75 Jahre Max-Planck-Institut für Privatrecht (2001), p. 587 et seq.; Layton/Mercer para. 11.030. See Brechmann, in: Callies/Ruffert (eds.), EUV/EGV (2nd ed. 2002) Art. 68 EGV note 2; Geimer/Schütze Einl. A.1 note 162; Kropholler/von Hein Einl. note 34; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 45; probably also Layton/Mercer para. 11.029. For instance in the United Kingdom the House of Lords, in France the Cour de Cassation, in Germany the Bundesgerichtshof. See Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 45 and fn. 174.

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national law provides that there is no judicial remedy against their decision in the concrete case, be it that the sum is not reached which is needed to entitle to appeal, be it otherwise. Where the first instance is at the same time the last instance this court is obliged to a reference to the CJEU.231 96 Where it is the court’s discretion to permit a remedy to a higher instance, the first court

remains nonetheless a court of last instance if there is no judicial remedy if the court refuses the permission.232 Where the court on the contrary either permits the remedy or where its refusal can be attacked by a separate remedy, the court is not a court of last instance and is not obliged to make a reference.233 d) Relevance for the original dispute 97 A reference for a preliminary ruling of the CJEU is inadmissible where the interpretation

issue has no bearing on the outcome of the original dispute before the referring court. The referring court must consider that a decision on the referred question is necessary to enable it to give judgment (Art. 267 TFEU). The CJEU is neither competent nor obliged to answer mere hypothetical questions concerning the interpretation of the Regulation nor does the Court render legal opinions on such issues. References to that effect are thus inadmissible. The referring court must therefore explain in its referral why the answer to the interpretation issue is decisive for the final judgment.234 The interpretation issue is for instance irrelevant where all possible interpretations lead to the same result235 or where a party is already precluded to raise the interpretation issue.236 98 It is the referring court’s discretion to regard an interpretation issue as doubtful. Only if the

issue is clear beyond reasonable doubt a referral becomes inadmissible (acte clair doctrine).237 But the CJEU accepted even a reference on the matter whether under an EU Regulation sheep’s wool had to be regarded as a product gained from animals.238 e) Obligation to refer 99 Where the mentioned requirements are met the final court is not only entitled but also

obliged to refer the interpretation issue to the CJEU.239 Without such obligation of the national courts of last instance the CJEU could not effectively fulfil its function to unify the interpretation of the Regulation. It is however only the national court which can make a reference to the CJEU. The parties may urge the court to do so but they themselves are not 231

232 233

234 235

236 237 238 239

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Danmarks Rederiforening v. LO Landsorganisationen i Sverige (Case C-18/02), [2004] ECR I-1417 para. 17. See thereto Geimer/Schütze Einl. A.1 note 162 with further references. See also Kenny Roland Lyckeskog (Case C-99/00), [2002] ECR I-4839 para. 16; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 58. Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207. In this sense at least BGH IPRax 2003, 346, 349; also Kropholler/von Hein Einl. note 35; but doubting Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 50. Kropholler/von Hein Einl. note 35. CILFIT v. Ministero della Sanità (Case 283/81), [1982] ECR 3415. See CILFIT v. Ministero della Sanità (Case 283/81), [1982] ECR 3415. Also Kropholler/von Hein Einl. note 36; Layton/Mercer para. 11.029; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 43 with further references.

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entitled to a referral and they have no remedy under EU law if the national court refuses a reference (though under national law a remedy may lie).240 Only in exceptional circumstances is the national court not obliged to refer an interpretation 100 issue. One such situation is where the CJEU has already decided that issue.241 But even if an CJEU ruling already exists a court is nonetheless entitled to a reference. It can be expected that in such a case the referring court explains in detail why it considers the previous decision of the CJEU as unsatisfactory. There is also no obligation to refer and, as mentioned above, a reference becomes inad- 101 missible if the interpretation issue is clear beyond reasonable doubt.242 However, courts should be cautious to consider interpretation issues as so clear. Courts of other jurisdictions and in particular the CJEU might take another view on the interpretation. In order to support the CJEU’s function to unify the interpretation of the Regulation national courts should rather refer than avoid referrals. f) Formal requirements In its referral the court must formulate concrete questions which the CJEU is asked to 102 answer. The referring court must further give a survey of the facts and of the legal background of the dispute – the facts must therefore already have been established243 – and it must explain why the interpretation issue is relevant for its decision.244 In cases of particular urgency the national courts may apply for the special urgent procedure provided for in Art. 104b of the Rules of Procedure of the Court of Justice.245 According to para (1) of this provision the national court “shall set out, in its request, the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and shall, insofar as possible, indicate the answer it proposes to the questions referred.” 3. The effects of decisions of the CJEU The preliminary ruling of the CJEU decides the interpretation issue with binding effect for 103 the court and the parties of the referred dispute. But the ruling is neither a final decision of the original dispute nor has it a binding effect on other parties or other disputes.246 Even the referring court can refer the same issue in another dispute again to the CJEU.247 Nonetheless, 240 241

242 243

244 245 246

247

See Geimer/Schütze Einl. A.1 note 164; Kropholler/von Hein Einl. note 36. Da Costa en Schaake NV v. Netherlands Inland Revenue Administration (Joined Cases 28–30/62), [1963] ECR 63 et seq.; CILFIT v. Ministero della Sanità (Case 283/81), [1982] ECR 3415, 3429. CILFIT v. Ministero della Sanità (Case 283/81), [1982] ECR 3415. Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207, para. 35 et seq.; see also Geimer/Schütze Einl. A.1 note 167. Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207. See OJ 2008 L 24/39. Geimer/Schütze Einl. A.1 note 174; Kropholler/von Hein Einl. note 38; Schmidt-Parzefall, Die Auslegung des Parallelübereinkommens von Lugano (1995) pp. 35 et seq.; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 62; for a wider binding effect however Brückner, in: Hommelhoff/Jayme/Mangold (eds.), Europäischer Binnenmarkt, IPR und Rechtsangleichung (1995), p. 267 et seq. See Da Costa en Schaake NV v. Netherlands Inland Revenue Administration (Joined Cases 28–30/62), [1963] ECR 63.

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once the CJEU has decided on an interpretation issue this decision has a wide factual effect and is regularly followed by the national courts of the Member States. 4. The reference procedure under the former Art. 68 (3) EC Treaty 104 As a kind of compensation measure for the restricted access of national courts to the ECJ

Art. 68 (3) sent. 1 EC Treaty entitled the Council, the Commission and each Member State to refer interpretation issues concerning legislative acts based on Title IV of Part III of the EC Treaty – and thus concerning also the Regulation – to the European Court of Justice. It was a procedure by which abstract and hypothetical questions could be posed. A connection with a concrete dispute was not required. The TFEU abolished this special procedure. 105 Decisions rendered by the CJEU under Art. 68 (3) EC Treaty could not affect in any respect

final and binding judgments which have been delivered before by national courts even if these judgments would now have to be decided to the contrary (see Art. 68 (3) 2nd sentence EC Treaty). The CJEU decision did not give any justification to resume the prior proceedings, either.248 106 As far as visible the procedure under Art. 68 (3) EC Treaty was never used. The procedure

was no adequate equivalent for the necessary cooperation and dialogue between the CJEU and the national courts in applying the Regulation. 5. Fast track references 107 Especially in matters of parental responsibility speedy decisions are of particular importance

because children’s awareness of time differs fundamentally from that of adults. The lapse of few months or even weeks matters for children much more than for adults, the younger the children the more. This fact must be taken into account even in the reference procedure to the CJEU. Art. 104b of the Rules of Procedure of the CJEU provides for a specifically speedy procedure in cases of urgency when questions covered by Title V of Part Three of the TFEU (Arts. 67 et seq., ex Title IV of Part Three of the EC Treaty, Arts. 61 et seq.) are raised, as for instance in proceedings on the return of an abducted or retained child.249 In such a case the national court which refers the case to the CJEU for a preliminary ruling “shall set out, in its request, the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and shall, in so far as possible, indicate the answer it proposes to the questions referred.”250 However, the CJEU can also on its own motion order that the reference be dealt with under the urgent procedure.251 The details of the urgent procedure are prescribed by Art. 104b Rules of the Procedure of the CJEU. 6. History of references under the Brussels II and Brussels IIbis regime in a nutshell 108 The short-lived Brussels II Regulation did not generate many references for preliminary

251

Geimer/Schütze Einl. A.1 note 179; Christian Kohler, in: FS Reinhold Geimer (2002), p. 461, 469; Kropholler/von Hein Einl. note 31; Ansgar Staudinger, in: Rauscher, Einl. Brüssel I-VO note 63. See Inga Rinau (Case C-195/08), [2008] ECR I-5271 paras. 43 et seq. Art. 104b (1) Rules of Procedure of the ECJ. Art. 104b (1) Rules of Procedure of the ECJ.

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249 250

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rulings to the CJEU. The only identifiable one was originally made by the OLG München252 but apparently not in fact submitted (or literally transmitted) to the CJEU and finally lifted.253 It concerned the question as to whether Art. 2 (1) (a) 6th lemma Brussels II Regulation was reconcilable with Art. 12 EC Treaty.254 Deplorably, the CJEU was deprived of the opportunity to answer this fundamental question. Taking into account that the Brussels II Regulation has been repealed for a long time now it is very unlikely that more references on this ill-fated Regulation will be issued. At least, it would be a great surprise to see any more references on Brussels II now that Brussels IIbis has been the prevailing currency since 2005. The main culprit for the rather smallish number of references before the Treaty of Lisbon became effective, nonetheless has been without any possible doubt Art. 68 EC Treaty whose rule limited the respective competence to national courts of last instance.255 With all due respect, it would have been more convincing e.g. to let the CJEU have the final say as to whether the term “marriage” under the Brussels II Regulation comprises same-sex registered partnerships than to have the Rechtbank Roermond256 settle the issue in a short-reasoned judgment at first instance. The number of references under the Brussels IIbis Regulation on which the CJEU has 109 decided, is mounting and ever mounting. The geographical spread from the very start has been evidence that the Brussels IIbis Regulation is law in action, not law in the books throughout total Europe. The first ever reference originated in Finland,257 the second in Sweden,258 and the third in Lithuania.259 The pace and rate of decisions on Brussels IIbis by the CJEU might be approximated at about four to five per annum now, not quite matching the Brussels I/Ibis level, but Brussels IIbis is definitely “there”. A problem for memorisation is that in many cases the names of the parties are abbreviated or translated into mere initials; P v. M or A is less memorable (and distinguishable) than Mercredi v. Chaffe (or short: Mercredi). Such anonymisation takes place in particular with regard to children’s names and is a price to be paid for good measure. The issues which attract the relatively most references have changed over time. In the early 110 years clearly jurisdiction was the most burning issue. This changed substantially after Hadadi,260 A,261 C,262 and above all Mercredi 263 had catered for most valuable clarifications and guidelines viable in practice. Now care proceedings are at the front. Most times they call for 252 253

254

255 256 257 258 259 260

261 262 263

OLG München FamRZ 2003, 546. OLG München FamRZ 2003, 546; see IPRspr. 2002 Nr. 163 p. 429 fn. 1; Urs Peter Gruber, IPRax 2005, 293, 295; Hau, GPR 2005, 143, 145. OLG München FamRZ 2003, 546 with references to Hau, FamRZ 2000, 1333, 1336 et seq.; Heß, JZ 2001, 573, 575; Hausmann, EuLF 2000–01, 345, 352; Schack, RabelsZ 65 (2001), 615, 624. Hau, GPR 2005, 143, 145 et seq.; Moylan/Hannah Baker, Nov. [2006] IFL 188, 191. Rb. Roermond NIPR 2001 Nr. 188 p. 327. Korkein Hallonto-oikeus 13 October 2006. Högsta domstolen 7 February 2007. Lietuvos Aukščiausiasis Teismas 30 April 2008. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871. A v. Perusturvalautakunta (Case C-523/07), [2009] ECR I-2805. C (Case C-435/06), [2007] ECR I-10141. Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU), [2010] ECR I-14309.

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the utmost expedience and are subject to a special procedure, the urgent procedure provided for in Art. 104b Rules of Procedure of the CJEU. This is evidenced by a “PPU” being added to the CJEU’s case number with the “U” indicating urgency. 111 Bearing in mind the brunt which Arts. 16–19 had to take from England particularly in the

2000s when London was the favourite forum for divorce applications by the wives of Russian oligarchs and other wealthies,264 it is astonishing that the rules on lis pendens have prompted comparatively few references.265 Perhaps their progeny from Arts. 27–30 Brussels I Regulation, and the elaborate case law on the preceding Arts. 21, 22 Brussels Convention provide a supplementary explanation that courts might feel a reduced need for references. Another candidate possibly prompting some references in the future is Art. 15, astonishingly often employed in practice, not only in the United Kingdom (as one might expect), but also e.g. in Germany and Austria. Art. 20, albeit also a regular in practice, is less likely to generate references for, first, it is germane to mere provisional proceedings and, second, much can be gained interpretatorily from previous case law on Art. 24 Brussels Convention, Art. 31 Brussels I Regulation and now Art. 35 Brussels Ibis Regulation. 112 A side note is deserved by the oddity and peculiarity that the European Court of First

Instance had to deal with a case involving the Brussels II regime.266 Of course, this judgment should not serve as too much of a guiding authority since it only randomly touches upon matters covered in Brussels II. VIII. Jurisdictional regime – generalities 1. Element of internationality required 113 In order to become applicable the jurisdictional regime of the Brussels IIbis Regulation

requires and presupposes a connection of the case with another state different from the forum state. Purely internal cases are not covered since the Brussels IIbis regime is only concerned with international jurisdiction whereas purely internal matters connected only with the forum state do not call for the determination of international jurisdiction, but for the determination of venue or local jurisdiction which the Brussels IIbis regime cannot provide for.267 114 In general, the jurisdictional regime of the Brussels IIbis Regulation is deemed to be con-

clusive268 as far as it goes. National law as to jurisdiction will only be allowed to supplement insofar as it is expressly invited to do so by a rule in the Brussels IIbis Regulation itself (e.g. Art. 13).

264 265

266 267 268

40

See Introduction to Arts. 16–19 notes 6–16 (Mankowski). P v. M (Case C-507/14), ECLI:EU:C:2015:512 and A v. B (Case C-489/14), ECLI:EU:C:2015:654 being the sole exceptions generating a decision by the CJEU. AA v. BB [2014] EWHC 4219 (Fam), [2015] 2 FLR 1251 (F.D., Moylan J.) might be the most prominent reference (Case C-489/14). Kallianos v. Commission (Case T-93/04), [2006] ECR II-A-2–00537, ECLI:EU:T:2006:130. Rb. ’s-Gravenhage NIPR 2003 Nr. 13 p. 38; Rb. ’s-Gravenhage NIPR 2004 Nr. 232 p. 330. See only Rb. ’s-Gravenhage NIPR 2007 Nr. 283 p. 377.

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2. Relations to non-Member States Like the jurisdictional regime of the Brussels Ibis Regulation the jurisdictional regime of the 115 Brussels IIbis Regulation does not expressly deal with cases where the necessary element of internationality is only generated by an element connecting the case with a non-Member State. That internationality is given where a relation with another Member State than the present forum state exists, is uncontroversial and in fact a no-brainer. Yet, internationality can also stem from elements connecting the case with a non-Member State269 since such a case is not a purely internal case related exclusively to the forum state anymore. This approach now clearly prevails under the Brussels I/Ibis Regulation and can count on firm support by the CJEU there. The respective case law, namely the decisions in Group Josí270 and Owusu,271 generally can be transferred into the realm of the Brussels IIbis Regulation.272 Additionally, Recitals (8) and (12) Brussels II Regulation were and still are strong indications 116 although they have not been verbally retained in the Recitals of the Brussels IIbis Regulation.273 Recital (8) Brussels II Regulation expressly mentions that citizens and nationals of non-Member States are subjected to the rules of the Brussels II Regulation if there is a sufficiently strong bond tying the case with the EU. The necessary relation to the territory of the EU is in existence if it can be established that jurisdiction under any head of jurisdiction of the Brussels IIbis Regulation exists in the concrete case.274 The Brussels IIbis approach does not limit the application of the jurisdictional regime by any specific connecting factor drawing a specific territorial scope of application. This is best evidenced by the contrast with Art. 4 Brussels Ibis Regulation which takes a firmly different stance; the lack of any corollary to Art. 4 Brussels Ibis Regulation in the Brussels IIbis Regulation confirms the different approaches.275 After the CJEU has affirmed this view in Sundelind Lopez276 the matter should be regarded as settled. Such approach can rely on its simplicity and makes it unnecessary to double-check and to check on other facts (as for instance the defendant’s residence) once a suiting connecting factor has been established.277 It also erases any necessity to look as to whether internationality requires links with another Member State.278

269

270

271 272

273 274

275 276 277 278

Cass. D. 2005, 1459 = RCDIP 94 (2005), 515; Sana-Chaillé de Néré, D. 2005, 1459, 1460; Crône, Rép. Defrénois 2005, 1331, 1335 et seq.; Pataut, RCDIP 94 (2005), 516, 520. Group Josi Reinsurance Co SA v. Universal General Insurance Co (UGIC) (Case C-412/98), [2000] ECR I-5925, I-5952-I-5958 paras. 35–61. Andrew Owusu v. Nugent B. Jackson (Case C-281/02), [2005] ECR I-1383. Sana-Chaillé de Néré, D. 2005, 1459, 1460; Pataut, RCDIP 94 (2005), 516, 520. But see JKN v. JCN, [2010] EWHC 843 (Fam) [149], [2011] 1 FLR 826, [2011] 2 FCR 33 (F.D., Deputy Judge Theis Q.C.); Rogerson, IPRax 2010, 553, 555. Outrightly contra with regard to Owusu, Mittal v. Mittal [2013] EWCA Civ 1255 [37], [41], [2014] Fam. 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.). See only Crône, Rép. Defrénois 2005, 1331, 1335. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26; Crône, Rép. Defrénois 2005, 1331, 1335; Pataut, in: Malatesta/Bariatti/Pocar p. 123, 129. Pataut, in: Malatesta/Bariatti/Pocar p. 123, 126–130. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26. Pataut, in: Malatesta/Bariatti/Pocar p. 123, 129. Pataut, in: Malatesta/Bariatti/Pocar p. 123, 129 et seq.

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3. General concepts underlying heads of jurisdiction 117 In family affairs, private persons, not enterprises are the acting personnel. This might

prompt a tendency that in order to make justice effective jurisdiction should favour and encourage application by providing fora close to the prospective applicant.279 118 But for the classification called for under Art. 3 (1) (a) 6th lemma, the jurisdictional rules of

the Brussels IIbis Regulation are not based on nationality, but on habitual residence and can thus be upheld against nationals of non-Member States resident within the EU.280 Thus any contention that the Brussels IIbis Regulation is only applicable as between the Member States,281 needs a slight rectification. 119 Yet unlike the basic features of the Brussels Ibis Regulation, there is not a single principal

jurisdictional basis, the other being mostly subsidiary.282 It cannot be forcefully maintained that particularly the respondent’s domicile serves as the utmost and predominant cornerstone.283 The structure of the jurisdictional regime of the Brussels IIbis Regulation is fundamentally different from that to be one found in the Brussels Ibis Regulation. Where the latter combines general jurisdiction and special fora the former opts for a choice of equivalent fora plus a subsidiary reference to national law.284 The reason for this is to ease access to the courts and to promulgate a favor divortii.285 120 One of the primary objectives of the Brussels IIbis regime is to simplify jurisdictional rules

and to eliminate expensive and superfluous litigation.286 The couple that first litigates where to litigate might be said to be cursed.287 Yet, in reality this curse might be restricted to the rich for only they can afford such folly.288 121 Despite some (and sometimes severe) criticism in the past, the jurisdictional regime with

regard to divorce and dissolution of marriage has not undergone substantial evolution and has not been subject to material alterations when it comes to comparing the Brussels IIbis Regulation to its predecessor.289 In particular, there still are two grounds of jurisdiction employing nationality as a connecting factor and Art. 3 (1) (b) still remains in spite of

289

Dethloff, AcP 204 (2004), 544, 561. Sulaiman v. Juffali [2002] 1 FLR 479, 485 et seq. (F.D., Munby J.); see also for simple and uncontested applications Hof ’s-Gravenhage NIPR 2004 Nr. 214 p. 309; Hof ’s-Hertogenbosch NIPR 2005 Nr. 5 p. 42; Rb. Arnhem NIPR 2005 Nr. 8 p. 44; Rb. Dordrecht NIPR 2005 Nr. 108 p. 156 (in the concrete cases both spouses were common citizens of Ghana, Turkey or Russia respectively, but all were habitually resident in the Netherlands); AG Leverkusen FamRZ 2005, 1684, 1685. Hof Leeuwarden NIPR 2002 Nr. 240 p. 407. Peter E. Herzog, in: Essays in Honor of Arthur T. von Mehren (Ardsley, NY 2002), p. 83, 99. Peter E. Herzog, in: Essays in Honor of Arthur T. von Mehren (Ardsley, NY 2002), p. 83, 99 et seq. Bonomi, in: FS Roland Bieber (2007), p. 771, 774. Bonomi, in: FS Roland Bieber (2007), p. 771, 774 et seq. Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.); L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1118 et seq. (F.D., Singer J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.). Hau, GPR 2005, 143, 144.

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279 280

281 282 283 284 285 286 287

288

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allegations of discrimination violating against Art. 18 TFEU (ex Art. 12 EC Treaty).290 Additionally, the danger of forum shopping allegedly is not entirely banned and under control. The Green Paper on cross-border divorce and the ensuing Rome III Proposal291 reflected and indicated some concern about this at least on the Commission’s part.292 The introduction and the advent of the Brussels IIbis Regulation have particular impact in 122 relation to proceedings with respect to parental responsibility, as the jurisdictional link with matrimonial proceedings is severed.293 Clear jurisdictional rules apply even as to children who are not present or habitually resident within the forum state.294 Generally, the jurisdictional rules of the Brussels IIbis regime are strict rules not granting any 123 degree of discretion to the judge. The rules are inflexible, mandatory and not allowing for a voluntary stay even if the court seized deems another forum clearly more appropriate.295 Just like the Brussels Ibis Regulation and its own predecessor, the Brussels II Regulation, the Brussels IIbis Regulation follows the continental paths of determining jurisdiction and generally disapproves of the doctrine of forum non conveniens.296 This ends the substantial costs of discretionary forum litigation.297 Yet – and this is a material change compared to the Brussels II Regulation and a genuine novelty in European family law298 – for limited purposes Art. 15299 introduces a modified version of this doctrine300 as an off-spring of Arts. 5, 8, 9 Hague Children Protection Convention 1996.301 Being still under the control of a substantial aspect, namely the child’s paramount interest, and to be handled with severe caution302 Art. 15 may be explained away as some new kind of cross-border judicial co-operation rather than a proper doctrine of forum non conveniens, though.303 Whether it can be truly called revolutionary, whether it proves its inherent value and whether it will serve as a

290 291 292 293 294 295

296 297

298 299

300

301

302 303

OLG München FamRZ 2003, 546. See fn. 26. Hau, GPR 2005, 143, 144. Bailey-Harris, [2004] Fam. L. 103, 104; Coester-Waltjen, in: FS Andreas Heldrich (2005), p. 549, 560. Re S (Child: financial provision) [2005] 2 FLR 94, 101 (C.A., per Thorpe L.J.). Mostyn, [2001] Fam. L. 359, 363–365; McEleavy, (2002) 51 ICLQ 883, 887; John Murphy, International Dimensions in Family Law (2005) p. 125. See only Niklas p. 104 et seq.; Blobel, GPR 2005, 140, 142. But see also Rogerson, IPRax 2010, 553. The International Family Law Group, iGuides to family law and practice – Brussels II p. 2 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1446 [40] (C.A., per Thorpe L.J.). For first judicial apprehensions and applications of Art. 15 see Hof Gent R. W. 2005–2006, 432, 433; KG FamRZ 2006, 1618; Hof ’s-Gravenhage NIPR 2007 Nr. 273 p. 363. See only Espinosa Calabuig, RDIPP 2003, 735, 766 et seq.; Solomon, FamRZ 2004, 1409, 1413 et seq.; Vlas/ Ibili, WPNR 6616 (2005), 263, 268; Alfred Burgstaller/Neumayr, in: FS Peter Schlosser (2005), p. 119, 120; de Cristofaro, Riv. dir. proc. 2006, 1381, 1391 et seq. and most extensively Ibili, Gewogen rechtsmacht in het IPR (2007) pp. 154–178. Michael Busch/Rölke, FamRZ 2004, 1338, 1341; Blobel, GPR 2005, 140, 142; Schlosser, in: FS Dieter Schwab (2005), p. 1255, 1256; Borrás, in: Malatesta/Bariatti/Pocar p. 99, 107. KG FamRZ 2006, 1618. Coester-Waltjen, FamRZ 2005, 241, 245; Blobel, GPR 2005, 140, 142; see also Borrás, in: Malatesta/ Bariatti/Pocar p. 99, 107.

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role model for other areas of law still remains to be seen.304 At least it can be regarded as an innovation and a genuine novelty insofar as its paragraph (6) directly calls for a co-operation between the competent authorities and courts of the Member States, the first time that this became a binding rule in any supranational act of law.305 Nonetheless, it operates only in rather limited if not exceptional circumstances and contains safeguards to avoid delays and interim litigation.306 An even more modest parallel might be found in Art. 12 (1) (b).307 124 Exorbitant rules of jurisdiction under national law are avoided by another technique than

under the Brussels Ibis regime. Under the Brussels Ibis Regulation Art. 5 and 6 do the trick whereas under the Brussels IIbis regime Arts. 6 and 7 clearly demonstrate and organise that exorbitant rules of jurisdiction can be employed only if no connecting factor used by the Regulation’s heads of jurisdiction is located in a Member State and that employing such exorbitant rules is inhibited if the defendant is habitually resident in continental EU Europe or domiciled in the United Kingdom or Ireland or the national of a Member State.308 4. Relevant point of time 125 The relevant point of time as to which the facts establishing jurisdiction have to be ascer-

tained, is in principle the time when the application is made. At which point of time the application becomes pending or the writ is served upon the respondent is immaterial. The early point of time is the relevant one since it is the only one as to when the applicant can properly judge whether the court seized has jurisdiction. The applicant only has information about the facts as they are standing before the application is made. He must rely on the factual setting he can reach then. He is not obliged, nor would it be advisable and recommendable at all, to speculate about the future. If the factual setting is changing after the application is made and in particular the facts establishing jurisdiction at the outset are changing, the principle of perpetuatio fori applies.309 The situation under Brussels IIbis is the same as under Brussels Ibis.310 The justified reliance and the trust invested by the applicant gain the appropriate protection. In particular, the respondent must not be permitted to deprive the applicant of the forum by going on the run and moving to another jurisdiction after the application is made.311 There must not be any potential for manipulation, tampering and playing with jurisdiction on the respondent’s side. “You can’t divorce from me – I don’t live here anymore!” must not be a maxim prevailing under the Brussels IIbis Regulation.

311

Hau, GPR 2005, 143, 144. Schlosser, in: FS Dieter Schwab (2005), p. 1255, 1256. Hodson, [2005] IFL 235, 236. Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1446 [42] (C.A., per Thorpe L.J.). Pataut, in: Malatesta/Bariatti/Pocar p. 123, 130 et seq. Michael Busch/Rölke, FamRZ 2004, 1338, 1341; Blobel, GPR 2005, 140, 142. See there Danmarks Rederiforeniging, acting on behalf of DFDS Torline AS/LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket for Service och Kommunikation (Case C-18/02), [2004] ECR I-1417 para. 37; Kropholler/von Hein, Vor Art. 2 EuGVVO note 14; Nagel/Gottwald, Internationales Zivilprozessrecht (7th ed. 2015) § 5 note 231; Mankowski, in: Rauscher, Vor Art. 4 Brüssel Ia-VO note 4; Mankowski, RIW 2004, 481, 496. Mankowski, RIW 2004, 481, 496; Mankowski, NZI 2005, 575, 576.

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On the other hand, the principle does not work in the negative. There is nothing like a 126 principle of discontinuatio fori. The principle that the point of time when the application is made is the relevant one does not become operative and effective in the event that the facts establishing jurisdiction were not present when the application is made, but are in existence at the time when the court hears the case and trial is proceeding. In this event jurisdiction should be affirmatively ascertained.312 To dismiss the case for lack of initial jurisdiction would be highly inefficient and would only produce additional costs uselessly invested. If the court dismissed the case on that ground the applicant would instantly renew his/her application which in turn would be admissible this time. The only result would be doubling the number of proceedings and frustrating costs which is of no avail to either party or to the court.313 The sound administration of justice and the efficacious conduct of proceedings, the paramount goals of European international procedural law, strongly demand otherwise. The possibility and opportunity that initial lack of jurisdiction might be cured until the time when the court last assesses the facts, should be admitted. 5. Establishing facts, burden of proof and ascertaining facts ex officio The court must apply the jurisdictional rules of the Brussels IIbis Regulation ex officio, i.e. of 127 its own motion.314 It does not have any major discretion, and the doctrine of forum non conveniens is ruled out but for Art. 15.315 Even the single heads of jurisdiction must be applied of the court’s own motion and strictly ex officio since there is nothing like jurisdiction based on the respondent’s submission in the Brussels IIbis regime.316 Art. 26 Brussels Ibis Regulation does not have a counterpart here and is not mirrored else. 6. Party autonomy Quite remarkable for the areas touched is the introduction of some degree of party auton- 128 omy.317 To a certain extent, at least in matters of parental responsibility the parties to the proceedings can influence the forum regardless whether or not this could be called in its own right a true electio fori. Art. 12 (1) (b), (3) (b) permit to do so following and extending the footsteps of Art. 3 (2) Brussels II Regulation.318 The constructive approach pursued there should not be confused and intermingled with true agreements on jurisdiction which would be binding upon the parties and upon the courts concerned, though.319 From the scratch the very wording is different. Comparing it to Art. 25 (1) Brussels Ibis Regulation should do fine service as an eye-opener in this regard. Art. 12 (1) (b), (3) (b) deliberately use different formulations and rely on “acceptance”. This reveals a different underlying concept than that

312

313 314 315 316 317 318

319

Geimer, NJW 1976, 441, 445 et seq.; Wieczorek/Schütze/Hausmann, ZPO, vol. I (3rd ed. 1994) Vor Art 2 EuGVÜ note 26; Mankowski, in: Rauscher, Vor Art. 4 Brüssel Ia-VO note 4. Mankowski, in: Rauscher, Vor Art. 4 Brüssel Ia-VO note 4. See only Pataut, RCDIP 94 (2005), 516, 518. Supra Introduction notes 5, 123. Pataut, RCDIP 94 (2005), 516, 518. On party autonomy under the Maintenance and Rome III Regulations Boele-Woelki, FJR 2007, 297. See in more detail infra Art. 12 notes 31–37 (Pataut) and Pabst, in: Liber amicorum Thomas Rauscher (2005), p. 115. Coester-Waltjen, in: FS Andreas Heldrich (2005), p. 549, 560.

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pursued by Art. 25 Brussels Ibis Regulation.320 The construction chosen is more akin to tacit submission (Art. 26 Brussels Ibis Regulation) than to proper jurisdiction clauses.321 This does not necessarily imply that the same yardsticks should apply to the “acceptance” as would be applicable under Art. 26 Brussels Ibis Regulation322 since the differing terminology could indicate and signalise slight divergences as to substance, though,323 the more so since nowadays express acceptance is required.324 Furthermore, the superior interests of the child exert control and are a safeguard allowing and urging the court to act as a very vivid and alert watchdog.325 129 In matters concerning divorce or other kinds of dissolution of marriage, Art. 6 clearly

indicates by exclusively attributing the grounds of jurisdiction contained in Arts. 3–5 that party autonomy going beyond that is ruled out.326 This applies both in the positive sense (parties cannot by agreement vest jurisdiction in a court otherwise not competent but for Art. 3 (1) (a) 4th lemma) and in the negative sense (parties cannot by agreement deprive a court of jurisdiction vested in it by the jurisdictional regime of Arts. 3–5). Neither prorogation nor derogation is admissible in matters of divorce or dissolution of marriage but for Art. 3 (1) (a) 4th lemma.327 130 Hence, in contrast to the approach taken by the Brussels Ibis Regulation the Brussels IIbis

Regulation does not grant the parties a wide freedom to select and to choose the competent court.328 Neither choice of court agreements nor the submission to jurisdiction are generally recognised.329 Hence, any jurisdiction clauses in prenuptial agreements will carry no weight.330 7. Lack of hierarchical order and rules on lis pendens 131 The Brussels IIbis Regulation assembles an astonishing number of heads of jurisdictions. In

particular Art. 3 provides a vast array and a flourishing bunch of possible grounds of 320

321

322 323 324

325 326

327

328 329 330

46

Rauscher, in: Rauscher, Art. 3 Brüssel II-VO note 17; Geimer/Schütze Art. 3 EheGVO note 11; Pabst, in: Liber amicorum Thomas Rauscher (2005), p. 115, 123. Boele-Woelki, ZfRV 2001, 121, 124; Vogel, MDR 2000, 1045, 1048; Geimer/Schütze Art. 3 EheGVO note 11; Gördes p. 63; Coester-Waltjen, in: FS Andreas Heldrich (2005), p. 549, 560; Pabst, in: Liber amicorum Thomas Rauscher (2005), p. 115, 124. Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1447 et seq. (53) (C.A., per Lawrence Collins L.J.). Pabst, in: Liber amicorum Thomas Rauscher (2005), p. 115, 124. Pabst, in: Liber amicorum Thomas Rauscher (2005), p. 115, 126. Doubting Solomon, FamRZ 2004, 1409, 1413. Coester-Waltjen, in: FS Andreas Heldrich (2005), p. 549, 560. CA Paris Clunet 130 (2003), 811, 814 with note Boiché; Pertegás, in: Meeusen/Pertegás/Straetmans/ Swennen (eds.), International Family Law for the European Union (2007), p. 319, 332. Pertegás, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 332. See Recital (14). See only Neumayr, iFamZ 2008, 362, 364. Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549; The International Family Law Group, Guides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/docu ments/Brussels_II.pdf.

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jurisdiction. These grounds have equal weight and are not in a hierarchical order.331 None of them is superior to any other, and vice versa none of them is inferior and subsidiary to any other. Besides favouring forum shopping this generates the possibility of conflicting sets of proceedings. In turn, a regime for regulating such conflict is necessary. This very necessity prompts Arts. 16–19 on lis alibi pendens and on establishing or cross-checking the own jurisdiction of the court seized.332 These rules gain their weight and their importance from the great number of heads of jurisdiction available to applicants.333 Whether de lege ferenda party autonomy could serve as some kind of tie-breaker should be a 132 matter of thorough discussion.334 Nonetheless, as experience under the Brussels I/Ibis regime has amply demonstrated party autonomy as such even if vesting such power in the parties as to designate an exclusive forum is not itself sufficient to avoid forum shopping and a race to the court if a party boldly sets the agreement aside and files proceedings with another court than the one chosen.335 Indirectly, such race to the courts negatively affects the chances of favouring consensual solutions and, in particular, of a consensual solution on the venue of litigation and the jurisdictional issue.336 IX. Recognition and enforcement – generalities The purpose of any system of recognition can be spelt out in the nick of time: It is to avoid 133 wherever possible “limping” situations, of judgments recognised in one jurisdiction not being fully recognised in another.337 Decisions dismissing applications for divorce, annulment or else dissolution of marriages 134 are outside the Regulation rules on recognition and enforcement.338 But does this e contrario amount to such decisions being totally unrecognisable and unenforceable in other Member States?339 The alternative solution appears more advisable and more feasible: Recognition and enforcement of such decisions should be covered by the Regulation or, as a minimum solution, at least be left to national law.340 Otherwise negative decisions rendered by courts in no-Member States could gain more favourable treatment than judgments rendered by Member States, rather an untenable and striking result.341 The concern about recognising 331 332 333 334

335

336

337 338

339 340 341

Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. Sana-Chaillé de Néré, D. 2005, 1459, 1461. Pertegás, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 332 et seq. Pertegás, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 333. Wautelet, in: Wautelet (dir.), Actualités de contentieux familial international (2005), p. 69, 101; Pertegás, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 333. D. v. D. (Nature of Recognition of Overseas Divorce) [2006] 2 FLR 825, 838 (F.D., Bodey J.). See only Recital (15) Brussels II Regulation; Report Borrás para. 60; Rauscher, in: Rauscher, Art. 2 note 10 with ample references. To this extent Hausmann, EuLF 2000–01, 345, 348. Helms, FamRZ 2001, 257, 258; Andrae, ERA-Forum 1/2003, 28, 33. Andrae, ERA-Forum 1/2003, 28, 33.

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negative judgments might be that this might bar actions for divorce in the State where recognition is sought. Yet this heavily depends on the extent to which negative judgments exert a res iudicata effect and such effect might be fairly limited indeed. 135 Decisions as to costs are recognisable and in particular enforceable pursuant to the Regu-

lation regime if and insofar the main proceedings of which they are part, fall inside the scope of the Regulation.342 136 Decisions on parental responsibility as such (not on a right to visit or on the return of a child

detained) are not enforceable since they lack an enforceable content.343 X. Particular delicacy of the topics touched upon 137 Undeniably family law is a far more delicate topic than commercial law ever could be. Family

law is deeply rooted in different national traditions and cultures, often coupled with, or embedded in, a religious background or at least a background heavily influenced by religion. In particular, this applies to dissolving the bond of marriage. In this regard some Member States, generally the Northern ones, are more liberal than others more conservative ones, the latter to be found mainly and primarily in the camp of catholic and Romanic countries. The stakes are rather high. Whilst the first rather care for the recognition of dissolutions (and the ensuing liberty to re-marry), the latter are more concerned with strengthening the bonds of marriage not allowing for a wanton and lightly executed dissolution. 138 The differences are not alleviated but to the contrary even built higher up by the context of

constitutional law family law touches upon many times. For instance, Art. 6 German Grundgesetz guarantees spouses the liberty to obtain a divorce. Until a few years ago such a contention would have been an insult to Italian and Irish ears, and still it sounds alien and incomprehensible to Maltese ears. Catholic countries still prefer to put obstacles in the way of obtaining a divorce most prominently in their substantive laws by insisting on firstly obtaining a decree of legal separation and secondly having to wait for another three years before the opportunity to transform such decree in a divorce judgment is finally achieved. Hence, it could even be asked whether a Regulation allocating jurisdiction for the divorce of – let us assume for the sake of argument – German citizens to catholic countries is compatible and reconcilable with the German Grundgesetz or whether it establishes an undue hindrance in the way of divorce.344 On the other hand, Sweden nurtures an even more liberal approach to divorce than Germany and is keen to guard if not to promote it. The fatal end of the attempt to establish a Union-wide uniform Rome III Regulation345 clearly emphasises and evidences the spread of opinion and tradition between Member States.

139 Having regard to, and bearing in mind, these manifold, difficult and troublesome contexts

the Brussels II regime was a bold first attempt to invade into rather uncharted territory and to introduce harmonised and unified rules of international procedural law where the sub342 343 344 345

48

See only BGH FamRZ 2005, 1539, 1545; Rolf Wagner, IPRax 2001, 73, 79. BGH FamRZ 2005, 1539, 1542. See in more detail Rauscher, in: FS Reinhold Geimer zum 65. Geb. (2002), p. 883. See Recital (6) Regulation (EC) No. 1259/2010.

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stantive laws (and even the conflict-of-law rules) of the Member States were far away from being even remotely harmonised and uniform, but were to the contrary sometimes worlds apart from each other. As it had already happened on some occasions in the past,346 international procedural law was chosen to volunteer and pioneer. Parental responsibility is not less delicate. In this area due respect has to be paid to Arts. 7, 47 139a Charter of Fundamental Rights.347 The child is at the core of the matter, and its wellbeing should be the paramount and dominating consideration. This often conflicts fundamentally with the eagerly pursued self-interests of the newly singled parents after they split. XI. State liability for incorrect application of the Regulation In the wake of the controversial348 judgments in Köbler349 and Traghetti Mediterraneo350 140 which established state liability under EU law for judicial misapprehensions of EU rules by national courts and were followed in Ferreira da Silva e Brito,351 some provoking thoughts might be tentatively ventilated: Member States could possibly be held liable if a forum is denied and a case was dismissed for lack of jurisdiction where on closer inspection jurisdiction would have existed. Yet, two restricting conditions must be met: The final judgment must be by a court of last 141 instance whose decisions are not subject to further appeal,352 and the misapprehension of EU

346

347

348

349 350 351

352

For instance, international procedural law in the shape of Art. 13 Brussels Convention as modified by the 1978 Accession Convention was the first area to display consumer protection in European law and the first time a definition of the term “consumer” was brought forward; see in more detail Norbert Reich, in: Hadding/Hopt (ed.), Das neue Verbraucherkreditgesetz (1991), p. 29, 32; Medicus, in: FS Zentaro Kitagawa (1992), p. 471, 478; Preis, ZHR 158 (1994), 567, 580 et seq.; Schmelzer, Der Konsumentenvertrag (Zürich 1995) pp. 51–53; Mankowski, VuR 2001, 112, 115; Mankowski, Beseitigungsrechte (2003) p. 260. See McB (Case C-400/10 PPU), [2010] ECR I-8965 paras. 49–63; Joseba Andoni Aguirre Zarraga v. Simone Pelz (Case C-491/10 PPU), [2010] ECR I-14247 paras. 59 et seq.; A v. B (Case C-112/13), ECLI:EU:C:2014:2195 paras. 42–46; Corneloup, in: Heiderhoff/Lohsse/Reiner Schulze (eds.), EU-Grundrechte und Privatrecht (2016), p. 61, 81–87. See the lively discussion e.g. by Obwexer, EuZW 2003, 726; Schwarzenegger, ZfRV 2003, 236; Breuer, BayVBl 2003, 586; Grune, BayVBl 2003, 673; Frenz, DVBl 2003, 1522; Gundel, EWS 2004, 8; Kremer, NJW 2004, 480; von Danwitz, JZ 2004, 301; Streinz, Jura 2004, 425; Wegner/Held, Jura 2004, 479; Kluth, DVBl 2004, 393; Rademacher, NVwZ 2004, 1415; Heike Krieger, JuS 2004, 855; Götz Schulze, ZEuP 2004, 1049; Daniel Tietjen, Das System des gemeinschaftsrechtlichen Staatshaftungsrechts (2010) pp. 108–117, 177–180; Machado, RLJ 2015, 246. Most comprehensively Marten Breuer, Staatshaftung für judikatives Unrecht (2011) pp. 378–520. Gerhard Köbler v. Republik Österreich (Case C-224/01), [2003] ECR I-10239. Traghetti del Mediterraneo SpA v. Repubblica Italiana (Case C-173/03), [2006] ECR I-5177. João Filipe Ferreira da Silva e Brito v. Estado Portoguês (Case C-160/14), ECLI:EU:C:2015:565 paras. 46– 60; A-G Bot, Opinion of 11 June 2015 in Case C-160/14, ECLI:EU:C:2015:390 paras. 105–115; discussed e.g. by Mengozzi, Dir. UE 2016, 401. Gerhard Köbler v. Republik Österreich (Case C-224/01), [2003] ECR I-10239, I-10310 para. 50; Traghetti del Mediterraneo SpA v. Repubblica Italiana (Case C-173/03), [2006] ECR I-5177 para. 32.

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rules must be obvious and evident.353 Any restriction possibly imposed by national law that liability can only flow from a judgment which was reversed, cannot stand.354 142 The damage due would be the damage resulting from the ensuing necessity to file another

application elsewhere355 (plus the costs for dismissing the first case insofar as such costs ought to be borne by the parties). Even more substantial damages can arise if a court unjustifiably denies interim measures for lack of jurisdiction under Art. 20.356 XII. Proposal for a Recast 143 On 30 June 2016 the Commission tabled a Proposal for a Recast of the Brussels IIbis

Regulation.357 The specific details of this Proposal will be discussed in the commentaries on the rules possibly affected in detail. 144 The focus of the Proposal generally is on parental responsibility,358 not on divorce proceed-

ings. This is evident from the fact that all six shortcomings which the Commission primarily wants to address and to cure, relate to parental responsibility.359 It is even more evidenced insofar as the Proposal alleges that the rules on divorce proceedings and the Common Provisions are regarded as remaining unchanged in the Recast. The list of “unchanged” provisions in this sense reads: Arts. 1–7; 8 (2); 9–11 (3); 11 (5), (7); 12 (2), (4), 13–15 (5); 16– 19; 20 (2); 21 (1), (2), (4); 22; 23 (a) (c)–(f); 24–27; 41 (2); 42 (2); 44, 48; 49, 51, 53; 54; 55 (b)– (e); 56 (2), (3); 58; 59 (1); 60 (a)–(d); 63; 66; 67 (a), (b).360 A possible explanation for, and background to, the Commission’s reluctance to address issues of divorce might be that touching upon divorce could mean touching upon the sensitive and political topic of marriage, homosexual marriage in particular. Taking divorce in the focus, too, thus could reopen Pandora’s box exciting resistence from the quarters of certain Member States. Political

353

354

355 356 357

358

359

360

50

Gerhard Köbler v. Republik Österreich (Case C-224/01), [2003] ECR I-10239, I-10312 para. 56, I-10329 para. 120; Traghetti del Mediterraneo SpA v. Repubblica Italiana (Case C-173/03), [2006] ECR I-5177 para. 43. João Filipe Ferreira da Silva e Brito v. Estado Portoguês (Case C-160/14), ECLI:EU:C:2015:565 paras. 51– 60; A-G Bot, Opinion of 11 June 2015 in Case C-160/14, ECLI:EU:C:2015:390 paras. 105–115. Tsikrikas, ZZP Int. 9 (2004), 123, 132. Tsikrikas, ZZP Int. 9 (2004), 123, 132. Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 (30 June 2016). See only Schlauß, ZKJ 2016, 348, 350; Frohn, NIPR 2016, 441 (441); Rodríguez Pineau, REDI 2017-1, 139 sowie van Loon, The Brussels IIa Regulation: Towards a Review, in: Cross-Border Activities in the EU – Making Life Easier for Citizens (Workshop for the JURI Committee) (2015) p. 178 http://www. europarl/europa.eu/RegData/etudes/STUD/2015/51003/IPOL_STU(2015)51003_EN.pdf. See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 pp. 3–5. See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 p. 17.

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quarrels in this area could eventually lead to missing out on the unanimity required by Art. 81 (3) TFEU and having to revert to enhanced cooperation once more. On the contrary, several substantial modifications are proposed with the aim of improving 145 the efficiency of the return if an abducted child and the problems relating to the complexity of the so-called “overriding mechanism” and the relation to the 1980 Hague Child Abduction Convention.361 Exequatur is going to be abolished.362 The cited list is not completely reliable and comprehensive, though, for it does not include newly introduced rules (like the proposed Art. 16 with the present Art. 16 being renumbered as new Art. 15, or the proposed Art. 20 on the hearing of the child).363 Alternative proposals from academia364 certainly also give first priority to parental respon- 146 sibility,365 but also, secondarily, plead for some changes with regard to divorce, too.366 The academic spectre covered was wider and ranged from scope367 and jurisdiction368 via provisional measures369 or recognition and enforcement370 to cross-border placement of children.371 The focus on parental responsibility is evidenced even by the proposed extension of the 147 official title of the future Regulation, “and on international child abduction” being added which does not appear in the denomination of the present Regulation. Particularly, the Commission does not envisage changes in regard of the race to court and the ensuing forum shopping enabled by the wide array of heads of jurisdiction available under Art. 3 in divorce proceedings. The Proposal does not take any progressive steps towards the extension of party autonomy 148 in jurisdictional affairs beyond the present Art. 12 Brussels IIbis Regulation. Insofar as divorce is concerned, it is believed that some Member States fear that some, though rather indirect kind of recognition of same-sex marriages would be possibly introduced by the backdoor. Minutely following the model established by the Brussels Ibis Regulation, the Proposal 149 ventures to supersede the present exequatur proceedings as established in Arts. 47–52 and to introduce a model combining direct enforceability (Art. 30 Proposal) with some

361

362 363 364 365 366 367 368 369 370 371

See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 p. 12. Frohn, NIPR 2016, 441, 443. Frohn, NIPR 2016, 441, 442. Culminating in the full fledged proposal by Kruger/Samyn, (2016) 12 JPrIL 132, 162–168. Kruger/Samyn, (2016) 12 JPrIL 132, 145–162. Kruger/Samyn, (2016) 12 JPrIL 132, 141–145. De Boer, NIPR 2015, 10. Borrás, NIPR 2015, 3. Mellone, NIPR 2015, 20. Janice M. Scott, NIPR 2015, 27. Forcada Miranda, NIPR 2015, 36.

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ingressions into enforcement proceedings (Arts. 31–36 Proposal) and an own proceeding for refusal of enforcement (Arts. 40–47 Proposal). 150 During its Milan Session of 16–18 September 2016, the Groupe Européen de Droit Inter-

national Privé has issued a Resolution on the Commission Proposal. It generally welcomes the proposed alterations372 and recommends but few changes, including the overriding return mechanism, specifications on relocation, a declarative reference to the importance of the Hague Child Abduction Convention for choice-of-law issues, and the introduction of a general welcoming of mediation.373 This Resolution was mainly based on Comments on the Commission Proposal, prepared by the Sub-Group ‘Nationality’.374, 375

Chapter I: Scope and Definitions Article 1: Scope 1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: (a) divorce, legal separation or marriage annulment; (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1 b) may, in particular, deal with: (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. 3. This Regulation shall not apply to: 372

373

374

375

52

Groupe Européen de droit international privé, Twenty-Sixth Session, Milano 16–18 September 2016, Resolution on the Commission Proposal for a Recast of the Brussels IIa Regulation, concerning parental responsibility and child abduction http://www.gedip-egpil.eu/documents/Milan%202016/Bx2b-ResPar -ENG-Final2.pdf. Groupe Européen de droit international privé, Twenty-Sixth Session, Milano 16–18 September 2016, Resolution on the Commission Proposal for a Recast of the Brussels IIa Regulation, concerning parental responsibility and child abduction, sub I-IX http://www.gedip-egpil.eu/documents/Milan%202016/Bx2b -ResPar-ENG-Final2.pdf. Groupe Européen de droit international privé, Vingt-sixième séance, Milano 16–18 septembre 2016, Compte rendu des séances de travail I: Processus du refonte de Règlement Bruxelles IIbis à propos de la responsibilité parentale et de l’enlèvement de l’enfant http://www.gedip-egpil.eu/reunionstravail/Reu nion%2026/PV-Trav-Finalv4_bis.pdf. Groupe Européen de droit international privé, Twenty-Sixth Session, Milano 16–18 September 2016, Resolution on the Commission Proposal for a Recast of the Brussels IIa Regulation, concerning parental responsibility and child abduction, fn. 1 http://www.gedip-egpil.eu/documents/Milan%202016/Bx2b-Re sPar-ENG-Final2.pdf.

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Article 1

(a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) measures taken as a result of criminal offences committed by children.

Bibliography Dilger, Die Regelungen zur internationalen Zuständigkeit in Ehesachen in der Verordnung (EG) Nr. 2201/2003, in: Studien zum ausländischen und internationalen Privatrecht, n° 116 (2004) Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (2003)

Pintens, Marriage and Partnership in the Brussels IIa-Regulation, in: Liber memorialis Petar Sarčevič (2006) Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht. Kommentar, IV, (4th ed. 2015), Art. 1 Spellenberg, in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2015), Brüssel IIa-VO, Art. 1.

General purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Scope of the Regulation 1. Nature of the court . . . . . . . . . . . . . . . . . . . . . . 4 2. Civil matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 a) Matrimonial matters . . . . . . . . . . . . . . . . . . . . 12 b) Matters of parental responsibility . . . . . . 14 3. Matrimonial proceedings . . . . . . . . . . . . . . . 16 a) Preliminary questions . . . . . . . . . . . . . . . . . . . 18 aa) Formless marriage . . . . . . . . . . . . . . . . . . . . . . . 19 bb) Same-sex marriage . . . . . . . . . . . . . . . . . . . . . . 20 cc) Factual relationship . . . . . . . . . . . . . . . . . . . . . 24 dd) Registered partnership . . . . . . . . . . . . . . . . . . 26 b) Divorce, legal separation and marriage annulment aa) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

aaa) Judgments attributing a new civil status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 bbb) Matrimonial rights and duties . . . . . . . . 36 ccc) Factual separation . . . . . . . . . . . . . . . . . . . . . . 37 ddd) Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . 38 bb) Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 cc) Legal separation . . . . . . . . . . . . . . . . . . . . . . . . 47 dd) Marriage annulment . . . . . . . . . . . . . . . . . . . 50 4. Parental responsibility a) Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 b) Independence of matrimonial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 c) Children aa) Children of the family . . . . . . . . . . . . . . . . . 62 bb) Definition of a child . . . . . . . . . . . . . . . . . . . 65 d) Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 aa) Included matters . . . . . . . . . . . . . . . . . . . . . . . 70 bb) Excluded matters . . . . . . . . . . . . . . . . . . . . . . . 72

I. II. III.

I. General purpose Article 1 sets forth the material scope of the Regulation and defines the proceedings and 1 matters covered by the Regulation.1 Para. (1) refers only to civil proceedings, thus excluding all other types of proceedings. As to the matters covered, para. (1) distinguishes between the 1

For the territorial scope see Art. 2 note 6 and Introduction note 33 et seq. (Magnus/Mankowski).

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purely matrimonial questions listed under lit. (a), (i.e. divorce, legal separation and marriage annulment) and questions of parental responsibility listed under lit. (b), (i.e. the attribution, exercise, delegation, restriction or termination of parental responsibility). 2 Whereas the matrimonial matters are not further defined,2 (2) and (3) give a detailed list of

parental responsibility issues. Para. (2) contains a detailed list of the matters covered by (1) (b); para. (3) lists matters that are excluded from the scope of the Regulation. 2a The Proposal for the Brussels IIbis Recast does not change the content of Art. 1.3 Only minor

grammatical changes are proposed. II. Legislative history 3 Art. 1 is mainly based on Art. 1 (1) Brussels II Convention and on Art. 1 (1) Brussels II

Regulation. The main difference lies in the field of parental responsibility. The Brussels IIbis Regulation covers all civil proceedings relating to parental responsibility, whereas the scope of the Convention and of the Brussels II Regulation are restricted to civil proceedings relating to parental responsibility for the children of both spouses in cases of matrimonial proceedings relating to divorce, legal separation or marriage annulment. The Brussels IIbis Regulation’s broader scope applies to all children, including children of one spouse and stepchildren, and takes the recomposed family into account. A connection with matrimonial proceedings or any other procedure is not necessary. III. Scope of the Regulation 1. Nature of the court 4 Not only judicial but also non-judicial proceedings are covered by the Regulation: the nature

of the court or administrative authority does not matter (Art. 1 (1)).4 Non-judicial proceedings, which cover administrative proceedings officially recognised in a Member State, were already included in the Convention. The fact that they were originally included in the Convention was due to the Danish divorce legislation, which permits spouses to opt for court proceedings or administrative proceedings.5 Administrative proceedings, however, can only be chosen when the spouses agree on the divorce and on certain consequences, such as custody and maintenance.6 A written procedure is applicable. The administration has to approve the divorce.

2

3 4 5 6

54

Here consideration of the Regulation and the Borrás Report are of great importance. Some of the explanations of the Borrás Report are duplicated in the explanatory memorandum of the Proposal for Brussels II (COM (1999) 220 final). COM (2016) 441/2. Also mentioned in Recital (7). Borrás Report para. 20-A. § 37 ff Marriage Act. See Giesen, V° Dänemark, in: Bergmann/Ferid/Henrich (ed.), Internationales Eheund Kindschaftsrecht, (2014) (looseleaf), p. 26; Storm/Godsk Pedersen/Lund-Andersen, Denmark, in: Pintens (ed.), Family and Succession Law, in: Blanpain (ed.), Int.Enc. Laws (2016), n° 74 et seq.

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Article 1

Even after the withdrawal of Denmark from the Regulation, the rule remains significant 5 because Estonian and Portuguese laws also allow administrative divorce proceedings. In Estonia, the vital statistics office and the notary have competence to grant a consent divorce, but only if the spouses do not request any decision on the consequences of the divorce.7 They must confirm that there are no disputes between them regarding the children, the division of the marital property and the payment of maintenance. In Portugal, the Director of the Civil Registry office is the competent authority for granting a consent divorce.8 In Romania, the notary and the civil-status registrar can grant an administrative divorce, but if the agreement concerning the children is contrary to their best interests, they have to submit the child related matters to the court.9 Their decisions have constitutive character. Italy introduced two administrative divorce types.10 The first type consists of an agreement negotiated between the spouses with the assistance of lawyers (negoziazione assistita). The public prosecutor has to give his nihil obstat. In case of minor or dependent children he has to give his consent. The registration by the civil-status registrar is declaratory. The second type is the divorce before the mayor in his capacity as the highest civil-status registrar. This type is only possible if the spouses do not have minor or dependent children. After two declarations by the spouses the mayor registers the divorce. This registration has only declarative character. Recently Spain adopted an administrative divorce.11 The competent authority is an official of the court or a notary. The spouses may choose between them. Since the competence of the authority is restricted to the control of the necessary agreements, the function of this authority has to be qualified as declaratory. On 1 January 2017 France introduced the ‘divorce sans juge’. The notary has to verify the legal requirements of the private document signed by the spouses and their advocates and to register the divorce agreement.12 In the Netherlands a bill is discussed in Parliament.13 In some legal systems, officers of the court or administrative authorities, such as social or 6 youth protection bodies, have jurisdiction in cases of parental responsibility. Thus, such proceedings fall within the scope of the Regulation.14 In Austria, a judicial officer, the Rechtspfleger, has authority to approve agreements concerning the exercise of parental 7

8

9 10

11

12

13 14

§ 64 Family Act of 18 October 2009; § 44 and 46 Act on Civil Status Acts of 20 May 2009. See Kullerkupp, in: The International Survey of Family Law (2001), p. 95, 103 et seq.; Schulze, V° Estonia, in: Bergmann/ Ferid/Henrich (fn. 6), p. 63. Art. 1773–1778 Civil Code. See de Oliveira, Portuguese Report, in: Boele-Woelki/Braat/Sumner, European Family Law in Action, I, Grounds for Divorce, in: EFL-Series, n° 2, (2003), Question 7 and 8. If the agreement on the children is not in his or her best interest, the director will forward the proceedings to the County Court. Art. 375–378 Civil Code. Decree Act of 12 September 2014. See Cubeddu Wiedemann/Henrich, Neue Trennungs- und Scheidungsverfahren in Italien, FamRZ 2015, 1253 ff. Art. 82 and 87 Civil Code as amended by Act 15/2015 of 2 July 2015. See Cerdeira Bravo de Mancilla (ed.), Separaciones y divorcios ante notario, 2016. Act n° 2016-1547 of 18 November 2016 (Art. 229-1 Civil Code). See the commentaries in Dr. fam. 2016, N° 7-8. A constitutional appeal has been rejected (Cons. Const. 17 November 2016, n° 2016-739 DC). Wetsvoorstel Scheiden zonder rechter (divorce without a judge), Tweede Kamer 2014–15, n° 34 118. Practice Guide for the application of the Brussels IIa Regulation (2014), p. 220; Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht. Kommentar, IV, (4th ed. 2015), Art. 1 Brüssel IIa-VO, note 20.

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responsibility.15 In Finland, custody, residence and visitation rights can be settled by an agreement approved by the communal social welfare board.16 Swedish welfare authorities, which are basically municipal administrative organs, have comparable functions and must be considered as courts when they are approving parental agreements on custody and access.17 Under Hungarian Law, the public guardianship authorities deal with disputes concerning parental responsibility, but only in cases where the parents live together. Those authorities also have the power to settle contact or visitation disputes, insofar as the case is not linked with a divorce procedure.18 In Germany, the youth office (Jugendamt) has the authority to take a child into custody (Inobhutnahme), when the minor requests it or when an urgent danger to the interest of the child requires so.19 7 Neither the Regulation nor the Borrás Report solve the question about the nature of the

intervention by an administrative body, nor do they differentiate between administrative proceedings with a declaratory or a constitutive character. Under the first system, the competent authority has a purely registration function; under the second one it renders a decision. Most legal writers accept that all divorces and legal separations fall within the scope of the Regulation, even if the intervention only has a declaratory nature.20 This seems to be the right solution since the Regulation does not differentiate based on whether the office of the administrative body has a constitutive or declaratory character. From a comparative perspective, it would not be wise to exclude those divorces where the role of the administrative body is of a declaratory nature since in certain legal systems the role of the judge in a consent divorce procedure is also very restricted.21 An example can be found in England where uncontested divorces are dealt with in a summary proceeding, the Special Procedure. Many legal scholars qualify those divorces as administrative procedures.22 Admittedly, differentiation between declaratory and constitutive intervention is not always easy.23 However, legal certainty is best served when all administrative procedures fall within the scope of

15

16 17 18 19 20

21 22

23

56

S. 19 (1) and (2) Rechtspflegergesetz. See Roth, Austrian Report, in: Boele-Woelki/Braat/Curry-Sumner (ed.) European Family Law in Action, III, Parental Responsibilities, in EFL-series, n° 9 (2005), Question 55. Law of 8 April 1983. See Borrás Report para. 20-A. Bogdan, Concise Introduction to EU Private International Law (2006), p. 96. See Weiss/Szeibert, Hungarian Report, in: Boele-Woelki et al (fn. 15), Question 55. § 42 (2) and (3) of the Law for the Protection of Children and Minors. Hau, FamRZ 1999, 484, 485; Mostermans, NIPR 2002, 263, 265; Mostermans, Echtscheiding (3d ed. 2006), p. 7: Widmer, FamPra.ch 2001, 689, 693. Contra: Jayme, IPRax 2000, 165; Rauscher/Rauscher (fn.14), Art. 1 Brüssel II-VO, note 10. Contra Spellenberg, in Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2015), Brüssel IIa-VO, Art. 1, note. 42. See also Mostermans, NIPR 2002, 263, 265. Cretney/Probert, Family law (9th ed. 2015), p. 73 et seq.; Dethloff, Die einverständliche Scheidung (1994), p. 171 et seq.; Eekelaar, Family Law and Social Policy (2nd ed. 1984), p. 54; O’Neil, Fam.L. 1974, 71 et seq. More pronounced examples can be found all over the world. One of the most cited examples is the divorce Californian Style (§§ 2400–2406 Cal. CC), the so-called ‘divorce by mail’. This kind of divorce is pronounced by a judge but the procedure is a pure administrative formality. Hereto Scherman, How To Do Your Own Divorce in California in 2016 (39th ed. 2016). See Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (2003) p. 56 et seq.

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the Regulation and that only divorces without any intervention of a competent authority should qualify as private divorces.24 Also within the field of parental authority, distinction between declaratory and constitutive 8 decisions is unnecessary, but one has to keep in mind that in this field, agreements can have effects without intervention of a competent authority when they have been formally drawn up or registered as authentic instruments and are enforceable in accordance with Art. 46.25 The Dutch “lightning” divorce, introduced in 2001 and abolished in 2009, does not fall 9 within the scope of the Regulation.26 In this system, a marriage is transformed into a registered partnership by joint declaration of the spouses before the registrar of civil status (Art. 77a Dutch CC). The partnership is then dissolved by a second joint declaration before the registrar (Art. 80c Dutch CC) so that a divorce can be obtained within twenty-four hours. The first step cannot fall under the Regulation since it does not concern a divorce but only a transformation of a marriage into a registered partnership. The second step does not concern a divorce either, but only the dissolution of a registered partnership, which is also not covered by the Regulation.27 The non-application of the Regulation, however, does not exclude the recognition under autonomous private international law of the authentic documents converting the marriage into a registered partnership and dissolving this partnership.28 The administrative authority must be an authority of a Member State. A foreign embassy or 10 consulate exercising competence within the territory of a Member State cannot be considered as such.29 2. Civil matters The Regulation employs the concept ‘civil matters’ without defining it, but it encompasses 11 all matters listed in art. 1 para. 1 (a) and (b).30 Since the Regulation covers not only civil but also administrative procedures, the reference to ‘civil matters’ may not be intended in a literal sense. Even though the expression has been used to limit the scope to matters of family 24 25 26

27

28

29

30

See Art. 1 note 12. Cf. Art. 46 note 9 (Magnus). Mostermans, NIPR 2002, 263, 265; Mostermans (fn. 15), p. 8. Comp. Jansegers, [email protected] 2002/4, 61 et seq. Rb. Mechelen 12 January 2006, E.J. 2006, 153, 155. Hereto De Backer/Jacobs, E.J. 2006, 145, 148; Pertegàs, in: Boele-Woelki/González Beilfuss (ed.), Brussels IIbis: Its Impact and Application in the Member States, in EFL-Series, n° 14 (2007), p. 57, 63 et seq. Cf. note 26 et seq. infra. Siehe auch OLG Celle, FamRBint 2006, 28, note Klüsener. For an application: Rb. Mechelen 12 January 2006, 153, 155 et seq. Hereto De Backer/Jacobs, E.J. 2006, 145, 146 et seq.; Pertegàs, in: Boele-Woelki/González Beilfuss (fn. 27), p. 64. Helms, FamRZ 2001, 257, 260; Niklas, Die europäische Zuständigkeitsordnung in Ehe- und Kindschaftssachen, in: Studien zum ausländischen und internationalen Privatrecht, n° 106 (2003), p. 55. Cf. note 12 infra. The wording of the Brussels IIbis Regulation differs from the wording used in the Brussels II Regulation. In the last one, instead of the notion ‘civil matters’ the expression ‘in matters relating to […]’ was used. Both expressions cover the same content.

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law, it nonetheless breaks through the dividing line between civil and public law. In systems where certain measures are considered public law measures, an autonomous interpretation can lead to qualification of the public law matter as a civil matter.31 Therefore, the notion ‘civil matters’ should be interpreted broadly.32 a) Matrimonial matters 12 Regarding matrimonial matters, private and religious proceedings are excluded.33 These

proceedings have no binding effect in the civil legal order. For example, the get-procedure before a Jewish rabbinic court in a Member State, or repudiation in a consulate in the territory of a Member State, are excluded from the scope of the Regulation. They have a completely private character as state authorities of this Member State are not involved in the procedure.34 Also, judgments by mufti’s in Greece, who have jurisdiction in divorce proceedings and custody matters concerning Muslim Greek citizens residing in the region of Thrace, are merely religious decisions.35 They have no res judicata effect and do not fall within the ambit of the Regulation. Those judgments are enforceable only after a Greek civil court renders a decision.36 The Oberlandesgericht in Frankfurt took this position when it decided that a civil court judgment was not a judgment in the sense of the Regulation because the Greek civil court was not exercising control over the content of the mufti’s decision.37 This approach is debatable, however, since the civil court verifies whether the mufti had jurisdiction and whether the applied provision of Muslim law was compatible with the Greek Constitution and, further, since the judgment is enforceable in Greece.38

13 On the other hand, Concordats and other bilateral agreements between Italy, Malta, Portugal

and Spain and the Holy See are safeguarded.39 Religious proceedings recognised in those Member States by these Concordats and agreements fall within the scope of the Regulation. If the religious decision needs homologation or ratification by a State organ, then not the religious decision but rather the state decision falls within the ambit of the Regulation. For example, from an Italian perspective this will be the judgment of the Corte d’ Appello, which is necessary for the recognition and enforcement of the religious decision in Italy.40 b) Matters of parental responsibility 14 Regarding parental responsibilities, youth protection measures with a penal character and 31 32 33

34

35 36 37 38 39

40

58

Cf. note 15 infra. Coester-Waltjen, FamRZ 2005, 241, 242. Borrás Report para. 20-B; Rauscher/Rauscher (fn. 14), Art. 2 Brüssel IIa-VO, note 7 et seq.; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO, note 44 et seq. Dornblüth (fn. 23); Gruber, FamRZ 2000, 1129, 1130; Hau, FamRZ 1999, 484, 485; Kropholler, Internationales Privatrecht (6th ed. 2006), p. 371 et seq. Cf. note 10 supra. Hereto Vassilakis/Kourtis, in: Boele-Woelki/Gonzàlez Beilfuss (fn. 22), p. 133, 137. Vgl. Rauscher/Rauscher (fn. 14), Art. 2 Brüssel IIa-VO, note 7. OLG Frankfurt 16 January 2006, FamRBint 2006, 77, note Block. Vassilakis/Kourtis, in: Boele-Woelki/Gonzàlez Beilfuss (fn. 27), p. 133, 137 et seq. See Art. 63, as amended, regarding to the Act of Accession and on the request of Malta by the Council Regulation (EC) N° 2116/2004 of 2 December 2004 amending Regulation (EC) N° 2201/2003, as regards treaties with the Holy See. Hereto Long, Familia 2006, 1127, 1134 et seq.; Long, in: Boele-Woelki/González Beilfuss (fn. 27), p. 167, 169 et seq.

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penal measures are excluded.41 Therefore, the placement of a child in institutional care only covers civil measures and does not cover a placement as a result of crimes committed by the child (Art. 2 (1) (d) and (2) (g)).42 Moreover, certain civil law items are excluded by Art. 1 (3).43 In practice, it will not be easy to define ‘civil matters’. As with all other concepts in the 15 Regulation, an autonomous interpretation is necessary as stated by the ECJ.44 In systems where, for example, the placement of a child in a foster family45 or in institutional care46 is a public law measure, it shall nevertheless be considered a civil matter for the purposes of the Regulation since the subject is the private relationship of parental responsibility.47 The placement of a child under the supervision of a youth protection service is another example.48 The restriction or termination of parental responsibility is always a civil matter, even when pronounced by an administrative authority or as a side effect of a penal conviction.49 Also a conflict between the parents on the issue of a child’s passport is a civil matter even when the passport is issued by a public authority.50 3. Matrimonial proceedings Matrimonial proceedings should be related to the dissolution (divorce or annulment) or 16 weakening (legal separation) of the marital bond. Dissolution through declaration of death or absence is not equated to dissolution by divorce, 17 but rather to dissolution by actual death and is, therefore, not covered by the Regulation.51 a) Preliminary questions It is necessary to examine the meaning of the term ‘marriage’ and whether the Regulation 18 applies to formal marriages only or whether it also applies to formless (or informal) marriages; only to heterosexual marriages or whether is also applies to same-sex marriages; and only to marriages so defined or whether it also applies to registered partnerships. From the wording, the Regulation can be read to apply only to a formal bond defined as ‘marriage’ and that informal bonds that are nonetheless factual relationships fall outside the scope of the

41 42 43 44 45 46 47

48 49 50 51

See also Art. 1 (3) (g). Cf. note 72 infra. Storme, [email protected] 2005/1, 50, 52. Cf. note 72 infra. Grand Chamber, C. (Case C-435/6), § 46; Health Service Executive v. S.S. and A.C. (Case C-92/12). Grand Chamber, C. (Case C-435/6) IPRax 2008, 509. A (Case C-523/07), FamRZ 2009, 843. Grand Chamber, C. (Case C-435/6); A. (Case C-532/7); Health Service Executive v. S.S. and A.C. (Case C-92/12). See Dutta, FamRZ 2008, 835.Practice Guide, p. 19 et seq.; Lowe, IFL 2004, 205, 206; Rauscher/ Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 20.E.g. the placement of a child under the custody of the Jugendamt (§ 42 (2) and (3) of the Law for the Protection of Children and Minors). Comp. Busch/Rölke, FamRZ 2004, 138, 1340. Contra Bogdan (fn. 1), p. 95. Hof Gent 5 September 2005, E.J. 2005, 183, note Roeland, R.W. 2005–06, 432. See for other examples Font i Segura, REDI 2004, 273, 279 et seq. Gogova v. Iliev (Case C-215/15). Comp. Borrás Report para. 27; Dornblüth (fn. 18), p. 59.

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Regulation. Once this preliminary question is examined, the scope of the Regulation can be determined. aa) Formless marriage 19 Formless marriages as Islamic or common-law marriages can only be taken into account if

they are considered by applicable national law equivalent to a formal marriage in the traditional sense.52 bb) Same-sex marriage 20 Marriage, in the traditional sense, is the union between a man and a woman.53 In 2001 the

Netherlands was, however, the first country to open the term ‘marriage’ to same-sex partners.54 Belgium followed this example in 2003.55 2013 Spain enacted legislation opening the term ‘marriage’ to same-sex partners.56 In the last years the example of those three legislations were followed by several EU-Member States as Denmark, Finland, France, Ireland, Luxemburg, Portugal, United Kingdom and Sweden.57 The question thus arises whether, along with heterosexual marriages, same-sex marriages fall within the scope of the Regulation.

21 The concept of marriage has to be interpreted autonomously: there is no reason to deviate

from the general rule that a Regulation must be interpreted in such a way,58 although the Rome III Regulation and the Regulation on matrimonial property regimes have left the definition of marriage as a preliminary question to the private international law of the Member States.59 This means that the content of the concept of marriage cannot be defined by means of the national law concerned, but that a European Union interpretation must be found. The legislative process leading to the Convention and the Brussels II Regulation took place at a time when same-sex marriages were unknown in the European Union. Therefore, it would seem clear that a traditional marriage concept was at the basis of those instruments.60 When implementing the Brussels IIbis Regulation, the European legislator was aware of the same-sex 52 53

54

55

56

57

58

59

60

60

Rauscher/Rauscher (fn. 14), Art. 1 Brüssel II-VO, note 9. D. and the Kingdom of Sweden v. Council of Ministers, (Case C-122/99) (2002) ECR I-4319, I-4353, FamRZ 2001, 1053, Riv.not 2002, 1263, note Calò. Law of 21 December 2000, Staatsblad 1 January 2001. See Schrama, in: Bainham (ed.), The International Survey of Family Law 2002 (2002), p. 278 et seq. Law of 13 February 2003, Belgisch Staatsblad 28 February 2003. See Pintens/Scherpe, StAZ 2003, 321 et seq.; Pintens/Scherpe, StAZ 2004, 290 et seq. Law of 1 July 2005, BOE N° 175 of 2 July 2005. Hereto Aguilar Ruiz/Hornero Méndez, Familia 2006, 299; Gonzàlez-Beilfuss, FamPra.ch 2006, 278 et seq.; Hernández Ibáñez, La Ley 2006/6510, Doctr., 1 et seq. See Boele-Woelki/Fuchs (ed.), Legal Recognition of Same-Sex Relationships in Europe (2nd ed. 2012); Curry-Sumner, in Scherpe (ed.), European Family Law II (2016), p. 118 et seq. Bogdan (fn. 17), p. 95; Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 5; Spellenberg (fn. 20) Einl zu Brüssel IIa-VO, note 51 et seq. On the autonomous interpretation of communitarian law see Audit, Clunet 2004, 789 et seq. Art. 1 (2) (b) Rome III; Art. 1 (2) (b) Matrimonial Property Regulation and Recital 21. See Kohler/Pintens, FamRZ 2016, 1510. Dilger, Die Regelungen zur internationalen Zuständigkeit in Ehesachen in der Verordnung (EG) Nr. 2201/2003, in: Studien zum ausländischen und internationalen Privatrecht, n° 116 (2004), p. 98 et seq.; Gruber, IPRax 2005, 293; Helms, FamRZ 2002, 1593, 1594 and IPRax 2001, 65 et seq.; Schack, RabelsZ 2001, 615, 620 et seq.

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developments in Belgium and in the Netherlands, but did not include them in the Regulation. Therefore, an historical argument would exclude same-sex marriages from the scope of the Regulation. Autonomous interpretation does not exclude the teleological method, but a wellestablished jurisprudence of the Court of Justice requires that a common core among the legislations of the Member States, or at least a strong tendency in a certain direction, has to be detected.61 Resulting from this, an interpretation which includes same-sex marriages was until 2003 impossible since only three legal systems out of twenty-seven had made marriage accessible to same-sex partners. The common core had to be followed. But legal doctrine underlined that, when more Member States provide a broader meaning of ‘marriage’, a teleological interpretation that includes same-sex marriages within the scope of the Regulation could be possible. But before we can reach that point, however, a common core or a strong tendency in this direction is necessary.62 It is doubtful whether the introduction of same-sex marriage in a growing number but still a minority of the twenty-eight Member States will convince the Court of Justice to give a broader interpretation to the definition of marriage taking into account that the matter is still highly controversial in some Member States. Although autonomous interpretation has a dynamic character, at present the dominant position in legal doctrine restricts the definition of marriage to heterosexual marriage.63 A minority of authors, especially Dutch and some Belgian, advocates the inclusion of same- 22 sex marriages on the basis of equality between the sexes and underlines that EC case law has not created a Community law concept of marriage, but rather has always maintained a formal concept of marriage as defined by national private law.64 In response to that argument, however, one could cite the case of D. and the Kingdom of Sweden v. Council of the European Union, in which the Court of Justice used an autonomous interpretation.65 Also, it has been argued that the Commission would seem to have accepted, as a consequence of the 61

62 63

64

65

D. and the Kingdom of Sweden v. Council of Ministers, (Case C-122/99) (2002) ECR I-4319, I-4353, D. 2001, Jur., 3380, note Nourissat/Devers, FamRZ 2001, 1053, Rev.trim.dr.civ. 2002, 76, note Hauser, Rev. trim.D.H. 2002, 663, note Maubernard, Riv.not 2002, 1263, note Calò. Also in this sense: Answer of Commissioner Vitorino in the European Parliament (Parl.Q. n° E-3261/01, OJ C 28E/2 of 6 February 2003). Hereto Jessurun d’ Oliveira, NJB 2002, 973. On the basis of both judgments the notion of “marriage” in the Directive N° 2004/38 on free movement of EU citizens does not encompass same-sex marriage. Hereto Costa, Familia 2006, 125, 131 et seq.; Tomasi/Ricci/Bariatti, in: Meeusen et al. (ed.), International Family Law for the European Union (2007), p. 341, 342 et seq. Dilger (fn. 60), p. 100; Pintens, in: Liber Memorialis Šarčević (2006), 335, 336 et seq. Martiny, in Boele-Woelki/Fuchs (fn. 57), p. 236 et seq. and 267; Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 5 et seq. Cop. Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO, note 3 et seq. Boele-Woelki, ZfRV 2001, 121, 127; Jessurun d’Oiveira, in: Liber Amicorum Siehr (2002), p. 527, 534; Mostermans, NIPR 2002, 263, 266; Quiñones Escảmez, in: Quiñones Escảmez et al. (ed.), Crisis matrimoniales. Protecciỏn del menor en el marco europeo (2005), p. 103, 107; Pertegàs, in: Boele-Woelki/ Gonzàlez Beilfuss (fn. 27), p. 57, 64 et seq.; Swennen, in: Meeusen et al. (fn. 61), p. 389, 397. See also Nourissat, Dr. & Patr. 2005/138, 48, 51 who has his doubts on an autonomous interpretation and favors the application of the private international law of the seized judge. Cf. note 21 supra. Already in the Reed case the Court stated concerning the interpretation of the term “spouse” that “any interpretation of a legal term on the basis of social developments must take into account the situation in the whole Community, not merely in one Member State” (The Netherlands v. Reed (Case C 59/85) (1986) ECR 1283, 1285, 2 CMLR 1987, 448, NJCM 1986, 444, note Steenbergen, S.E. W. 1987, 139, note Van Nuffel). Hereto Röthel, IPRax 2006, 250, 252.

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D.case, that a Dutch same-sex marriage falls under the concept of ‘marriage’, as mentioned in the Staff Regulations.66 This latter argument is not convincing, however. The Commission did indeed reflect on how to take into account the inclusive definition of ‘marriage’ under Dutch law and gave instructions that the same-sex marriage of an official under the Dutch Civil Code should be treated in the same way as any other marriage recognised in a Member State. However, Commissioner Vitorino pointed out that the interpretation of ‘marriage’ in the Staff Regulations is based on substantive community law (Art. 1a67 of the Staff Regulations and Art. 9 of the European Charter of Fundamental rights), whereas the Brussels IIbis Regulation is a private international law instrument, establishing rules on jurisdiction. Commissioner Vitorino stated that, ‘even if it cannot be excluded that the Regulation applies to procedures concerning the divorce of a same sex couple, this does not translate into an obligation on the part of the courts to recognise a same-sex marriage’.68 This point of view makes a clear distinction between, on the one hand, the concept of marriage according to substantive Community law (here the Staff Regulations that have to be interpreted accordingly to Art. 1a of those Regulations, excluding discrimination on the basis of sexual orientation) and, on the other hand, the interpretation of ‘marriage’ under the Brussels IIbis Regulation, which has to be interpreted autonomously taking into account the situation in all the Member States, as consistently affirmed by case law of the Court of Justice. 23 From an egalitarian point of view, it is not easy to find sociological, anthropological or

ethical grounds for excluding same-sex marriages from the scope of the Regulation, since they lead to the same consequences with the same rights and obligations as traditional marriages.69 Some authors who share the majority opinion have their doubts, or point out, that in the long run this situation needs revision.70 cc) Factual relationship 24 It is clear that relationships that exist in fact – factual relationships – have to be excluded

from the scope of the Regulation since they do not involve a change of legal status and they do not require the intervention of a competent legal authority to be dissolved. The wording of Art. 1 and the intent of the drafters clarify that the Regulation only applies to relationships that cannot be dissolved without a formalised decision by a competent authority.71 25 The exclusion is also applicable to those partnerships that are not registered, but that have

important consequences after a certain time has elapsed, such as those in Catalonia, Croatia 66

67 68 69

70

71

62

Answer of Commissioner Kinnock of 15 October 2001 in the European Parliament on Question P-2438/ 01, OJ C 93E of 18 April 2002. See hereto Jessurun d’Oliveira, NJB 2001, 2035 et seq. The administration department of the European Parliament had another opinion. See d’Oliveira, NJB 2002, 973. Presently Art. 1d. Answer Vitorino (fn. 61), p. 3. Except affiliation, but this cannot be the point since also traditional marriages do not have to lead to procreation. Helms, FamRZ 2002, 1593, 1594; Fulchiron, Dr. & Patr. 2005/136, 34, 35; Gaudemet-Tallon, Clunet 2001, 381, 387; Pintens, in: Liber Memorialis Šarčević (fn. 51), p. 335, 338; Kruger/Samyn, JPIL 2016/1, 132, 133 et seq. See also Fulchiron, D. 2006, Chron., 1253, 1257 et seq. and Röthel, IPRax 2006, 250, 253 discussing the matter from the perspective of freedom of circulation and the prohibition of discrimination in EUlaw. Calò, Familia 2005, 509, 520; Dilger, p. 82; Pintens, in: Liber Memorialis Šarčević (fn. 62), p. 335, 338.

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and Slovenia (for heterosexual partnerships only).72 Such partnerships can functionally be qualified as registered ones and not as simple factual ones. However, they also do not fall within the scope of the Regulation since they can be dissolved without the intervention of a competent legal authority and cannot be assimilated with marriage. They modify the consequences of the relationship but not the status of the relationship.73 They even do not fall in the ambit of the Regulation on the property consequences of registered partnerships since this Regulation is only applicable to registered partnerships and those partnerships are not registered.74 dd) Registered partnership The question arises whether a registered partnership can be equated to a marriage. Most 26 legal scholars answer this question in the negative or leave it open.75 However, the question is not without importance since registered partnerships have become more and more frequent. Indeed, the early Nordic laws on registered partnerships have gained influence all over Europe.76 These partnerships are not always restricted to same-sex relations, as is the case

72

73 74 75

76

Law of 28 December 1998. Hereto: Para Martin, in: Egea i Fernández/Ferrer i Riba (ed.), Comentaris al Code de família, a la llei d’unions estables de parella i a llei de situacions convivencials d’ajuda mutual (2000), p. 1259 et seq.; Art. 1 Croatian Family Act 2004. Hereto: Šarčevič, in: Šarčevič et al., in: Pintens (ed.), Family and Succession Law, V° Croatia (2013), p. 126 et seq.; Art. 12 Slovenian Marriage and Family Relations Act. Hereto: Kraljić/Rijavec, in: Pintens (ed.), Family and Succession law, V° Slovenia (2011), p. 75 et seq.; Rijavec/Kraljić, in: Scherpe/Yassari (fn. 52), p. 379; Zupančič/Novak, in: Verwilghen (ed.), Régimes matrimoniaux, successions et libéralités, III (3rd ed. 2003), p. 2313, 2348 et seq. Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 9. Dutta/Wedemann, in: Festschrift Kaissis (2012), p. 139; Pintens, in: Festschrift Stein (2015), p. 812. Bogdan (fn. 17), p. 95 (no); Fulchiron, Dr. & Patr. 2005/136, 34, 35 (no); Gaudemet-Tallon, Clunet 2001, 381, 387 (doubting but no); Gruber, IPRax 2005, 293 (no); Hau, FamRZ 2000, 1333, fn. 6 (open); Helms, FamRZ 2001, 257, 258 (no); Kohler, NJW 2001, 10, 15 (no); Niklas (fn. 24), p. 34 et seq. (no); Martiny, in Boele-Woelki/Fuchs (fn. 57), p. 236 (no); Polyzogopoulos, in: Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 139 et seq. (no); Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 8 (no); Schack, RabelsZ 2001, 615, 620 (no); Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 3 et seq. with a large overview of the different systems and a plea for including strong partnerships; Watté/Boularbah, J. trib. 2001, 369 et seq. (yes); Widmer, FamPra.ch 2001, 689, 696 et seq. (open). See the comparative studies of Basedow/Hopt/Kötz/Dopffel (ed.), Die Rechtstellung Gleichgeschlechtlicher Lebensgemeinschaften (2000); Boele-Woelki/Fuchs (ed.), Legal Recognition of Same-Sex Couples in Europe (2nd ed. 2012); Coester, FamPra.ch 2002, 748 et seq.; Curry-Sumner, All’s Wellt hat Ends Registered? (2005); Curry-Sumner, in Scherpe (fn. 57), p. 121 et seq.; Dutta, AcP 2016, 609 et seq.; González Beilfuss, Parejas de hecho y matrimonio del mismo sexo en la Unión Europea, (2004); Henrich/Schwab (ed), Eheliche Gemeinschaft, Partnerschaft und Vermögen im europäischen Vergleich (1999); Jakob, Die eingetragene Lebenspartnerschaft im Internationalen Privatrecht (2002), p. 14 et seq.; Pintens, FamRZ 2000, 69 et seq.; Roy, RIDC 2002, 759 et seq.; Scherpe/Yassari, Die Rechtsstellung nichtehelicher Lebensgemeinschaften. The Legal Status of Cohabitants (2005); Quiñones Escámez, Uniones conyugales o de pareja: formción, reconociemiento y efficacia international (2007); Van Caillie, La protection du partenaire survivant dans le cadre des lois européennes sur la cohabitation non-maritale. Etude de droit comparé et de droit international privé, in: Trav. Fac. Droit Fribourg (2005), esp. the general survey, p. 3 et seq.; Verschraegen, FamRZ 2000, 65; Des concubinages. Etudes Rubellin-Devinchi (2002).

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under Nordic law, but also apply to heterosexual relations in some legal systems as Belgium and France.77 27 In addition, several resolutions of the European Parliament have played an important role.78

In a Resolution on equal rights for homosexuals and lesbians in the European Community of 8 February 1994, the Member States are requested to take action to ensure equal treatment of all EC citizens regardless of sexual orientation and to eliminate all forms of discrimination based on such orientation.79 The Resolution considers it abusive that some legal systems neither allow same-sex couples to marry nor provide a corresponding legal institution. A Resolution on respect for human rights in the European Union of 16 March 2000 calls upon the Member States to guarantee unmarried couples and same-sex couples rights equal to those enjoyed by traditional couples and families. The European Parliament noted with satisfaction that, in a very large number of States, there is a growing legal recognition of extramarital cohabitation, irrespective of gender, and calls on those States which have not yet granted legal recognition to amend their legislation to grant legal recognition of extramarital cohabitation, irrespective of gender.80 In a Resolution on fundamental rights in the European Union of 4 September 2003, the Parliament recommends once again that the Member States recognise non-marital relationships, both heterosexual and homosexual, and confer the same rights on partners in these relationships as on those who are married.81 28 However, all the new legal institutions employ different solutions.82 Belgium,83 the Spanish

Communities (Catalonia, Aragon, Galicia, Navarra, Valencia, the Balearic Islands, Madrid, Asturias, Andalusia, the Canarian Islands, Extra-Madura and the Basque Country),84 France85 and the Netherlands86 have adopted a statutory Regulation for both heterosexual and same-sex partnerships, thus clearly differing from the Scandinavian model, which restricts its Regulation to the same-sex partnership.87 Some of these countries, such as Belgium, France and the Netherlands, apply the same rules to heterosexual and to same-sex partnerships. Other countries, such as most of the Spanish communities, differentiate between heterosexual and same-sex partnerships. Germany has adopted the Scandinavian model,88 77 78 79 80 81 82 83 84

85

86 87

88

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Cf. note 28 infra. For a survey of these resolutions see Jakob, FamRZ 2002, 501, 507. OJ C 61 of 28 February 1994. OJ C 377/334 of 29 December 2000. OJ C 76E/412 of 25 March 2004. See Curry-Sumner, in Scherpe (fn. 57), p. 121 et seq.; Dutta, AcP 2016, 620 et seq. Pintens, FamRZ 2000, 69 et seq., especially 71; Pintens, in: Scherpe/Yassari (fn. 76), p. 277 et seq. Martin Casals, in: Henrich/Schwab (ed.) (fn. 76), p. 283, 293 et seq.; González Beilfuss (fn. 76), p. 44; González Beilfuss, in: Scherpe/Yassari (fn. 62), p. 249 et seq.; Schlenker, in: Basedow et al. (ed.) (fn. 62), p. 145 et seq. Ferrand, FamRZ 2000, 517 et seq.; Ferrand, in: Scherpe/Yassari (fn. 76), p. 211 et seq.; Lécuyer, Dr.fam. 2000/1, 4 et seq.; Richards, ICLQ 2002, 305 et seq. Boele-Woelki/Schrama, in: Basedow et al. (ed.) (fn. 62), 51 et seq. Dopfel/Scherpe, in: Basedow et al. (ed.) (fn. 62), 7 et seq. The Scandinavian systems abolished registered partnerships when opening marriage for same-sex persons. Dethloff, NJW 2001, 2599 et seq.; Dethloff, in: Bainham (ed.), The International Survey of Family Law 2002 (2002), p. 171 et seq.; Kaiser, JZ 2001, 617 et seq.; Schwab, FamRZ 2001, 385 et seq.; Schwab, Die eingetragene Lebenspartnerschaft (2002).

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as has Switzerland.89 The English Parliament discussed a registered partnership for heterosexuals and for homosexuals,90 but finally adopted a government proposal on a civil partnership for homosexuals only.91 Some legal systems go further by adopting a Regulation providing for an asexual partnership between family members, as is the case in Belgium. The Belgian law allows a partnership, e.g., between parent and child or between brothers and sisters, primarily to enable the partners to obtain proprietary and tax benefits.92 However, most legal systems do not allow a partnership between relatives and relatives-in-law.93 The consequences of a partnership are often regulated very differently from those of a 29 marriage. France and Belgium have a partnership with limited consequences:94 the possibility of unilaterally terminating the partnership renders its modest patrimonial statute almost of minor importance. Most of the Spanish systems also have a partnership with limited effect.95 On the other hand, in Denmark, Norway and Sweden, a partnership basically has the same effect as a marriage. Marital property law and succession law have general application.96 Divorce law applies equally to the dissolution of the partnership.97 In addition, the Netherlands do not have any proprietary differences between marriage and registered partnership, thus marital property law also applies to the latter as well. If the partners do not agree on a certain regime, the legal matrimonial regime, e.g., a general community of property, applies ipso iure, thus establishing an extreme solidarity between the partners. The surviving partner has the same inheritance rights as a surviving spouse (art. 4:8 NBW). Dissolution of the partnership by consent is possible by a joint declaration before the registrar of births, deaths and marriages (Art. 1:80c, c NBW). However, a unilateral dissolution requires a judicial decision (Art. 1:80c, d and Art. 1:80e, 1 NBW). Furthermore, the German Lebenspartnerschaftsgesetz has important patrimonial consequences, especially since the revision in 2004.98 Marital property law applies ipso iure and the surviving partner has the same inheritance rights as the surviving spouse.99 Dissolution of either is only 89

90

91

92 93 94

95 96 97 98 99

Law of 18 June 2004. The law came into force on 1 January 2007. Hereto Grütter/Summesmatter, FamPra. ch 2004, 449 et seq.; Hausheer, FamRZ 2006, 246 et seq.; Schwenzer, FamPra.ch 2002, 223 et seq. After the House of Lords, in a trailblazing decision, has given a broad interpretation to the notion “family member” as mentioned in the Rent Act 1977, so that the homosexual partner could continue the tenancy rights of his deceased partner (Fitzpatrick v. Sterling Housing Association Ltd (1999) 3 WLR 1113, (2000) 1 FLR 271; hereto Flauss-Diem, Dr.fam. 2000/12, 8 et seq.), the House of Commons discussed a draft on a Relationships (Civil Registration) Bill (Bill 36), which was dropped after some discussion but can be put on the agenda again. Hereto Sumner, FJR 2002, 24 et seq. A Civil Partnerships Bill was also pending before the House of Lords, but was withdrawn after the second lecture. Civil Partnership Act 2004. Hereto Harper/Downs/Landells/Wilson, Civil Partnership: The New Law (2005); Röthel, FamRZ 2006, 598 et seq.; Spon-Smith, Fam Law 2005, 369 et seq.; Sumner, FJR 2002, 24 et seq. Pintens, in: Scherpe/Yassari (fn. 76), p. 277, 286. E.g. to the 3rd degree in France (Art. 515–2 CC). Ferrand, in: Scherpe/Yassari (fn. 76), p. 211, 225 et seq.; Pintens, in: Scherpe/Yassari (fn. 76), p. 286, 287 et seq. See González Beilfuss (fn. 76), p. 47 et seq.; González Beilfuss, in: Scherpe/Yassari (fn. 76), p. 249, 259 et seq. Dopfel/Scherpe (fn. 76), p. 7, 20 et seq. and 25. Dopfel/Scherpe (fn. 76), p. 7, 31 et seq. By Law of 15 December 2004, BGBl 2004 I, 3396 et seq. Hereto Stüber, FamRZ 2005, 574 et seq. Hereto Stüber, FamRZ 2005, 574, 575; von Dickhuth-Harrach, FamRZ 2005, 1139 et seq.

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possible by judicial decision.100 Also the English and Swiss partnerships have strong consequences. 30 Neither the Regulation nor the Borrás Report provide a definition of ‘marriage’, but it is

arguable that the drafters of the Convention and the Regulation only had the traditional marriage in mind.101 Discussions to include registered partnerships were going on at the time of drafting the Brussels IIbis Regulation, but were not included within the definition. At that time it was clear that the European Union, in a Draft Programme, opted for a separate Regulation.102 In this draft Programme, the Council clearly stated that family situations arising from relationships other than marriage remain outside the ambit of any instrument applicable among the Member States and that this problem should be resolved with a new instrument or a revision of the Brussels II Regulation through extension of the latter’s scope.103 31 Through teleological interpretation, the term ‘marriage’ could assimilate strong registered

partnerships.104 However, the main problem with doing so is the distinction that must be made between strong and weak partnerships. The short survey has shown how difficult it is to categorise the different types of partnerships as either weak or strong.105 The criteria are difficult to formulate. Proposals have been made to use the intervention of a competent authority for the dissolution of the partnership as the criterion for a strong partnership,106 but this criterion only covers one aspect of the partnership. The comparability of a weak or strong registered partnership should depend, in the first instance, on the rights and duties of the parties.107 32 The exclusion of registered partnerships is in accordance with the case law of the ECJ. In the

case of D. and the Kingdom of Sweden v. Council of the European Union, the ECJ for the first time dealt with a registered partnership.108 In this case, the Council had rejected an application by a staff member, living in a registered partnership with a partner of the same sex, that sought the same household allowance as that provided for married couples in the Staff Regulations of Officials of the European Communities. The ECJ provided several arguments, but mainly stated that statutory arrangements for registered partnerships are very diverse and are regarded in the Member States as distinct from marriage; as a result, the 100 101 102

103 104 105 106 107 108

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See Kaiser, FamRZ 2002, 866 et seq. Calvo Caravaca/Carrascosa Gonzảlez, Derecho de familia internacional (3th ed. 2005), p. 151. See the Draft Programme of the Council of 30 November 2000 of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters (OJ C 12 of 15 January 2001). In the same sense: Carlier/Francq/Van Boxstael, J. trib. 2001, 73, 75; Dilger (fn. 60), p. 89; Dornblüth (fn. 23), p. 41. P. 3 and 7. Comp. Gaudemet-Tallon, Clunet 2001, 381, 387; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO, note 4 et seq. Cf. note 29 supra. Watté/Boularbah, Rev.trim.dr.fam. 2000, 539, 545. Pintens, in: Liber Memorialis Petar Šarčević (fn. 62), p. 335, 342. D. and the Kingdom of Sweden v. Council of Ministers, (Case C-122/99) (2002) ECR I-4319, D. 2001, Jur., 3380, note Nourissat/Devers, FamRZ 2001, 1053, Rev.trim.dr.civ. 2002, 76, note Hauser, Rev.trim.DH 2002, 663, note Maubernard, Riv.not 2002, 1263, note Calò. Hereto Jakob, FamRZ 2002, 505 et seq. with further references.

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Community judiciary must retain that distinction and cannot interpret the Staff Regulations as treating registered partnerships in the same way as marriage. The ECJ cited Art. 13 EC Treaty and left the initiative for any change to the Community legislator.109 The outcome of the D. case became problematic, however, because the Commission had nonetheless accepted that Dutch same-sex marriages fall within the concept of ‘marriage’ as used in the Staff Regulations.110 This became problematic because, in turn, this leads to a new discrimination. If a national legislator adopted a far-reaching Regulation on the rights of same-sex couples, hereby calling this Regulation ‘marriage’, then those couples could enjoy the privileges provided by the Staff Regulations. If, however, a national legislator designated the same Regulation as a ‘registered partnership’, then those privileges would not be available. In 2004 the Staff Regulations were modified.111 The new Staff Regulations provide the same treatment for all registered partnerships, weak and strong. All partners will enjoy the same privileges, but there is a major condition that leads to an enormous limitation on the availability of those privileges: the privileges are only granted when the couple has no access to legal marriage in a Member State.112 This means that heterosexual registered partners cannot claim the allowance because they can marry. Belgian, Dutch and Spanish same-sex partners can only claim the allowance if they are married, but not when they live in a registered partnership, because they also can marry. Danish or German homosexual registered partners can claim the allowance, as they cannot marry.113 The D. case, with all its consequences, shows that the Court cannot be expected to contribute greatly to a real breakthrough in the question of assimilation of registered partnership within the definition of ‘marriage’.114 In addition, these difficulties demonstrate that it would be wise not to try to include registered partnerships in the Brussels II Regulation through assimilation or interpretation, but rather to leave the matter to a well-informed Community legislator.115 This reasoning applies to heterosexual as well as to same sex-partnerships. Early case law refused to assimilate ‘registered partnership’ within the definition of ‘mar- 33 riage’ and declared the Regulation not applicable.116

109 110 111

112

113 114 115 116

Comp. Kaddous, FamPra.ch 2004, 598, 611 et seq.; McGlynn, Ch. & Fam.L.Q. 2001, 35, 48. Cf. note 22 supra. Council Regulation (EC, EURATOM) N°723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ EC L 124/1. Art. 1d (1) and Annex VII, Art. 1 (2) (c). It is not clear what is meant by ‘in a Member State’. When this means that the couple is obliged to use the possibilities offered by the legislation of every competent Member State, then there is a clear discrimination between couples living or not living in such a Member State. Pintens, in: FS Schwab (2005), p. 1209, 1215 et seq. See for many examples Jessurun d’Oliveira, in: Liber Amicorum Siehr (fn. 64), p. 527 et seq. In the same sense Mostermans, NIPR 2002, 263, 267. Rb. Roermond 29 March 2001 NIPR 2001, 327 (without any motivation).

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b) Divorce, legal separation and marriage annulment aa) General aaa) Judgments attributing a new civil status 34 The decision should be related to the dissolution or ‘weakening’ of the marriage bond, such

as divorce, legal separation or marriage annulment and, therefore, only apply in principle to judgments attributing a new civil status (Gestaltungsurteile, jugements constitutifs).117 In legal scholarship, there is considerable discussion as to whether the term ‘judgment’ covers only positive decisions granting divorce, legal separation or annulment, or whether it also covers negative decisions denying the claim. Including negative decisions would complete a unified area, but many arguments favour the first position, that only positive decisions are covered. Firstly, the English version of Art. 2, n° 4 states that the term ‘judgment’ shall mean a divorce, legal separation or marriage annulment. Also, the French version mentions ‘toute décision de divorce, separation de corps ou d’annulation d’un mariage’. From those texts it can be deduced that the divorce, etc. must have been granted.118 The texts do not mention a ‘judgment relating to divorce, etc.’ The latter wording is broader and means every decision including a negative one. In other languages this is not that clear. The German version of Art. 2 mentions ‘Entscheidung über die Ehescheidung’, which would rather be translated as ‘a judgment relating to divorce’.119 Secondly, taking into account the objective of the Regulation, i.e. to facilitate recognition and enforcement of divorces, legal separations and annulments, as well as the major differences among the Member States on divorce and separation, the Borrás Report states that the word ‘judgment’ means only positive decisions.120 This point of view is confirmed in the Explanatory Memorandum to the Brussels II Regulation.121 Thirdly, history teaches that the first solution was adopted under pressure from the Nordic countries wishing to avoid the possibility that liberal systems could recognise negative decisions from systems with more conservative divorce laws.122 The present solution makes it possible for a spouse whose divorce claim was denied in one Member State to apply to another Member State with a more liberal divorce law again using the same grounds. Forum shopping will be the consequence; and finally the law of the most liberal system will prevail. Some authors regard this development as a very negative consequence of a system that does not favour marriage, but divorce.123 However, the chosen solution was a political one and the only possible way to come to a convention, and afterwards to a Regulation. Moreover, it is a 117

118

119 120

121

122

123

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Rauscher/Rauscher (fn. 14), Art. 2 Brüssel IIa-VO, note 10; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 18 et seq. Also Recital (8) states that the Regulation should apply only to the dissolution of matrimonial ties. See Kohler, NJW 2001, 10, 13. Helms, FamRZ 2001, 257, 258 and n. 24 there. Borrás Report para. 60; Jänterä-Jareborg, in Šarčević/Volken, Yearbook of Private International Law 1999 (1999), p. 1, 19, fn. 49. Comp. Kohler, NJW 2001, 10, 13. COM (1999) 220 final, p. 18: “The word ‘judgment’ refers only to positive decisions, that is to say those that do grant a divorce, legal separation or marriage annulment.” Ancel/Muir Watt, RCDIP 2001, 403, 436; de Vareilles-Sommières, Sem.J. 1999, 2018, 2022; Helms, FamRZ 2001, 257, 258 et seq.; Sturlèse, JCP 1998, I, 1148; Widmer, FamPra.ch 2001, 689, 695. Comp. Wagner, IPRax 2001, 73, 76. Dornblüth (fn. 23), p. 55; Kohler, NJW 2000, 10, 15; Jayme, IPRax 2000, 165 et seq.; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 18 et seq.

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task for substantive, and not for private international, law to decide on safeguarding marriage or allowing liberal divorce laws. It is debated whether limiting the term ‘judgment’ to positive judgments only would imply 35 that a negative judgement could not be recognised on the basis of international conventions and autonomous private international law of the requested state. The answer should be in the affirmative, since Art. 2 n° 4 defines the meaning of the term ‘judgment’ and not of the scope of the Regulation. There is no indication that the drafters of the Regulation intended to come to a conclusive resolution.124 Moreover, excluding the possibility of recognising the negative judgment would mean that a negative judgment from a third state could be recognised under national law and an EC-judgment could not.125 bbb) Matrimonial rights and duties Judgments on matrimonial rights and duties are excluded since they do not attribute a new 36 legal status. Decisions ordering the reconstitution of matrimonial life126 or confirming the right to refuse matrimonial life127 are respectively positive and negative declaratory judgments regulating matrimonial duties without dissolution of the marriage.128 Those decisions are left to national law, with the exception of decisions on proprietary rights and duties as from 29 January 2019 falling under the scope of the future Matrimonial Property Regulation for the participating Member States.129 ccc) Factual separation Since factual separations do not provoke a change of legal status, even if they are allowed or 37 confirmed by a judgment, they do not come within the purview of the Regulation.130 Decisions allowing the spouses to live separately as a provisional measure to manage a marriage crisis, decisions regulating a factual separation or homologating separation agreements fall outside the scope of the Regulation.131 The judgment does not convert the factual separation into a legal one. ddd) Consequences Consequences of judgments dissolving or ‘weakening’ the marriage do not fall within the 38 scope of the Regulation, with the exception of decisions on parental responsibilities (see (1) (b)).132 Rather, they are regulated by other EC Regulations or international conventions and, in the absence of such Regulations or conventions, by autonomous private international law. This rule is not specifically mentioned in the Articles of the Regulation, but in Recital (8).

124

125 126 127 128 129 130 131 132

See in this sense Helms, FamRZ 2001, 257, 258; Helms, FamRZ 2002, 1593, 1598. Comp. Kohler, NJW 2001, 10, 13; Widmer, FamPra.ch 2001, 689, 695; Bruneau, JCP 2001, 801, 802. Andreae, in: ERA-Forum 2003/1, 28, 33. E.g. for Germany: § 606 and 808 III ZPO. E.g. for Germany: § 1353 II BGB. Comp. Dornblüth (fn. 23), p. 40. Art. 1 (1) Matrimonial Property Regulation. See Kohler/Pintens, FamRZ 2016, 1510. Rauscher/Rauscher (fn. 14), Art. 1 Brüssel II-VO, note 2. Gruber, IPRax 2005, 293, 294. Contra: Schlosser, Art. 1 EheGVO aF, n° 2. Borrás, Rev.jur.cat. 2003, 361, 368 et seq.; Gottwald, in: Münchener Kommentar zum ZPO, Vor Art. 1 EheGVO note 5; Spellenberg, (fn. 20), Art. 1 Brüssel IIa-VO note 16.

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However, it was one of the main options of the Convention and is generally accepted.133 The rule applies, even if the consequences are interrelated with or part of the divorce judgement.134 39 The basic rule implies that personal consequences relating to the name of the spouses, e.g.,

the right to the name of the spouse, mostly the right of the wife to the name of the husband, are not affected by the Regulation. 40 Property consequences, such as the liquidation of the matrimonial regime,135 the division or

the reallocation of property or the division of pension rights (e.g., the German Versorgungsausgleich)136 and other ancillary measures are excluded.137 Originally the Commission proposed excluding maintenance from the scope of the Brussels I Regulation and inserting it into the Brussels II Regulation. In the final version, child maintenance is specifically excluded under (3) (e), but the exclusion also applies to maintenance between spouses.138 Jurisdiction, recognition and enforcement of judgments regarding maintenance obligations remained within the scope of Regulation (EC) n° 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.139 In the de Cavel case, the Court of Justice broadly applied the Brussels I Convention deciding that a claim falls within the scope of this Convention even if it is ancillary to proceedings that do not fall within the Convention’s sphere of application. The interim or final nature is not relevant. However, the most important part of the decision states that every payment has to be considered maintenance when it is fixed on the basis of the needs and resources of both spouses, thereby falling within the scope of the Convention.140 Therefore, the scope of the Convention (now the Brussels I Regulation) also included the prestation compensatoire under French law, since it takes into consideration the needs and possibilities of the spouses.141 The Spanish pension compensatoria deserved an identical qualification, since it refers to the possibilities of obtaining employment and can cover vital needs.142 In the Van den Boogaard case, the Court of Justice confirmed the de Cavel decision and made a clear distinction between maintenance provisions covered by the Brussels I Regulation and the division or allocation of property that does not fall within the scope of this Regulation.143 The Court provided a broad interpretation of the concept of maintenance 133 134 135

136 137 138 139 140 141

142 143

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Borrás Report para. 22; Niklas (fn. 24), p. 31 et seq. Widmer, FamPra.ch 2001, 689, 694. Rights in property arising out of a matrimonial relationships are also excluded from the scope of Brussels I (Art. 1, (2)). For the interpretation of this conception see de Cavel v. de Cavel, (Case 143/78) (1979) ECR 1055, Clunet 1979, 681, note Huet, RCDIP 1980, 621. Hereto Hahne/Holzwarth: in Schwab (ed.), Handbuch des Scheidungsrechts (7th ed. 2013), p. 1577 et seq. Bogdan (fn. 17), p. 95. See Font i Segura, REDI 2004, 273, 276 et seq. Hereto Monéger, Dr. & Patr. 2005/138, 64 et seq. de Cavel v. de Cavel I, (Case 143/78) (1979) ECR 1055, 1066, Clunet 1979, 681, note Huet. de Cavel v. de Cavel II, (Case C-120/79), (1980) ECR 731, 740, Clunet, 1980, 442, note Huet, RCDIP 1980, 621, note Droz; Devers, Dr. & Patr. 2005/136, 89, 91. See Art. 270 et seq. French CC. The divorce reform by law of 26 May 2004 does not touch this point since the needs of the spouses are still taken into account. Martin Casals/Ribot/Solé, Spanish report, in: Boele-Woelki et al. (fn. 8), Question 58. Van den Boogaard v. Laumen, (Case C-220/95) (1997) ECR I-1147, 1183, IPRax 1999, 35, note Matthias Weller, Clunet 1998, 568, note Huet, RCDIP 1998, 466, note Droz, CDE 1999, 201, note Tagaras.

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in deciding that, if the reasoning of a decision shows that the provision is designed to provide for the claimant or if the needs and resources of the spouses are taken into consideration in the determination of its amount, this decision shall relate to maintenance and therefore shall fall within the scope of the Regulation. Where the provision awarded is solely concerned with dividing property between the spouses, the decision shall relate to rights in property arising from a matrimonial relationship and shall not fall within the scope of the Regulation. Therefore a decision ordering payment of a lump sum and transfer of ownership in certain property by one spouse to the other spouse must be regarded as maintenance. This broad interpretation includes lump sum payments and reallocation of property under English law, if its purpose is to ensure the spouse’s maintenance. Brussels I lost his applicability in maintenance cases since the entry in force of the Maintenance Regulation dealing with jurisdiction, recognition and enforcement of all maintenance claims.144 The distinction made by the Court of Justice between maintenance provision and the division or allocation of property assets is still valuable. The first category falls under the scope of the Maintenance Regulation and the second part is governed by the Regulation on matrimonial property for the participating States and for the others by their international matrimonial property law.145 bb) Divorce Divorce is known in all legal systems of the European Union since Malta adopted divorce 41 legislation in 2011. The Regulation applies to every kind of divorce judgement, irrespective of the form (con- 42 tested or consent divorce) or the ground (fault, separation, irretrievable breakdown or on demand). Also, divorces on the basis of a conversion of legal separation into divorce fall within the scope of the Regulation. Recital (8) excludes the reasons for or the grounds of divorce from the Regulation since this 43 instrument is not dealing with applicable law in divorce cases.146 Recital (10) of the Brussels II Regulation states that the fault of one or both of the spouses is unaffected by the Regulation. In the legal systems of the European Union, fault divorce is declining in favour of divorce based upon the irretrievable breakdown of the marriage, especially divorce by consent or factual separation as autonomous grounds. However, in some systems, fault remains a ground for divorce (especially adultery and other serious or renewed violations of the marital duties, domestic violence).147 In Austria, Cyprus, France, Lithuania, Luxemburg, Poland and Portugal, fault is a general ground for divorce. In Norway, violence is a ground for divorce. In Italy imprisonment is a ground. In England, where irretrievable breakdown of the marriage is the sole ground for divorce, the breakdown can be proven by fault. Yet, 144

145 146 147

Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Concerning the applicable law the Regulation refers to the Hague Maintenance Protocol of 23 November 2007 (Art. 15). Dutta, ZEuP 2016, 457. This matter is left to national law and for the participating Member States to the Rome III Regulation. See Boele-Woelki/Gonzàlez Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses, in: EFL-Series (2004), p. 53 et seq. With further references; Pintens, FamRZ 2003, 329, 334 et seq.; Verschraegen, in: Int.Enc.Comp.L., V° Divorce. See also the survey in the Annex to the Green Paper on applicable law and jurisdiction in divorce matters (COM (2005) 82 final), SEC (2005) 331, p. 4 et seq.

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consideration of fault within the context of the Regulations would be surprising, since the scope of the Regulation is only competence, recognition and enforcement, and therefore the ground for the divorce is immaterial. Of course, in some systems, as in Belgium and in France, fault is important for certain consequences of the divorce. However, since those consequences (which concern mostly maintenance) do not fall within the scope of the Regulation, fault is still immaterial to the Regulation.148 44 The exclusion of fault from the scope of the Regulation only means that the consequences of

a fault divorce cannot be recognised under the Regulation. It does not affect the competence of a competent divorce authority to decide on an international divorce case, to take into account the fault of the spouses and to mention this in the operative part of the judgment, if the applicable law so prescribes.149 45 It is possible to recognise and enforce the divorce consequences under other conventions or

under autonomous law.150 46 The competent authority deciding on an international maintenance case can take into

account the fault of the spouses if the applicable law so allows.151 cc) Legal separation 47 Legal separation (séparation de corps, Trennung von Tisch und Bett) is not a divorce, but a

‘weakening’ of the marriage bound by a decision of a competent authority. As a consequence, the duties of the marriage are redefined. In all legal systems implementing legal separation, the obligation to live together and to build a marriage community ends. The duty of maintenance remains.152 Community property systems are mostly converted into separate property.153

48 Legal separation is not known in all legal systems of the European Union. It does not exist in

Austria, the Czech Republic, Cyprus, Estonia, Finland, Germany, Greece, Hungary, Latvia, the Netherlands, Slovakia, Slovenia and Sweden. The institution is typical of most of the legal systems originally or presently belonging to the Romanic family of law, such as Belgium, France, Italy, Luxemburg, Portugal and Spain as well as of Ireland and Malta, where the influence of Catholicism and canon law has been very strong. In Poland, it was introduced after the fall of communism under the influence of the Catholic Church. The institution also exists in Denmark, Lithuania and the United Kingdom. In most legal systems, legal separation is a permanent and definitive status, but the possibility to convert the separation into a divorce exists.154

154

Comp. Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 17 with reference to Art. 266 French CC that in case of unilateral fault of one spouse provides in damages for the other one. But this is also a consequence of the divorce that does not fall under the Regulation. See also Gaudemet-Tallon, Clunet 2001, 381, 388; Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 18 et seq. Gruber, IPRax 2005, 293, 294; Rauscher/Rauscher (fn. 1), Art. 1 Brüssel IIa-VO, note 18. Dornblüth (fn. 23), p. 40. Dornblüth (fn. 23), p. 40. See e.g. Art. 308 Belgian CC; Art. 303 French CC. See e.g. Art. 311 Belgian CC; Art. 302 French CC. See Art. 5.

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In some legal systems, where legal separation is unknown, private international law makes it 49 possible for the courts to decree a legal separation between spouses if their national law knows this institution.155 Such decisions fall within the scope of the Regulation. dd) Marriage annulment Marriage annulment is known in all Member States except Finland and Sweden, where 50 divorce proceedings apply.156 As a result, when divorce proceedings are pending in Sweden, whatever the ground for divorce may be,157 a court in another Member State is not competent to decide on a subsequent annulment claim.158 Moreover, an annulment in the form of a divorce is to be recognised and enforced by every Member State.159 National laws treat defective marriages in very different ways.160 In a first category of legal 51 systems, a distinction is made between void and voidable marriages, with many differentiations and varying terminology, e.g., Dutch (nietig161 huwelijk/vernietigbaar huwelijk),162 English (void marriage/voidable marriage),163 German (Nichtehe/aufhebbare Ehe)164 and Slovak (non matrimonium/matrimonium nullum)165 laws belong in this category. In general, a void marriage (e.g., a marriage before a person who does not have the power to conclude a marriage) does not exist and is ipso iure null and not requiring nullification. At most, a declaratory judgment can determine the nullity or the validity of the marriage. In a second category of legal systems, void marriages do not exist. All marriages with defects are voidable. There is a distinction only between causes of invalidity: some of these lead to absolute and others to relative nullity (e.g., in Belgian,166 Finnish,167 French,168 and Slovenian169 law). The term ‘annulment’ has to be interpreted autonomously.170 The Regulation and the Borrás 52 Report do not provide any guidance.171 One opinion is that declaratory judgments do not fall

155 156 157 158 159 160 161 162

163 164

165 166 167 168 169 170 171

See e.g. for Germany: BGH 1 April 1987, FamRZ 1987, 793. Cf. note 41 et seq. supra. See Art. 19 (1). Kohler, NJW 2001, 10, 12. Comp. Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO, note 3. For a survey see Coester-Waltjen/Coester, in: Int.Enc.Comp.L., V° Formation of marriage, p. 111 et seq. In the sense of non-existing. Nietige en vernietigbare huwelijken. See Kolkman/Salomons, Personen- en familierecht, in: Asser-Serie, (19th ed. 2016), p. 107 et seq. Cretney/Probert (fn. 22), p. 47 et seq. Dethlof, Familienrecht (31th ed. 2015), p. 45 et seq.; Frank, in Liber amicorum Pintens I (2012), p. 607 et seq. Hatapka, in: Boele-Woelki/Gonzàlez Beilfuss (fn. 27), p. 247, 250. De Page/Van Gysel, Traité élémentaire de droit civil belge, (5th ed. 2015), p. 371 et seq. Savolainen, in: Pintens (fn. 6), V° Finland p. 56 et seq. Bénabent, Droit de la famille (3th ed. 2014), p. 81 et seq. See Gec-Korosec/Rijavec, in: Pintens (fn. 6), V° Slovenia, p. 87. Dilger (fn. 40), p. 107; Pintens, in: Liber Memorialis Šarčević (fn. 62), p. 335, 336 et seq. Comp. with the 1970 Hague Divorce Convention that is clearly restricted to divorce and legal separation (Art. 1). Hereto Dilger (fn. 60), p. 118 et seq.

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within the scope of the Regulation.172 Different arguments have been used to support this, such as the Regulation is, in general, conceived for constitutive judgments attributing a new legal status: only they are mentioned.173 Also, Art. 2 para. 4 does not allow the recognition of a judgment denying a divorce claim. This position and the underlying reasoning must be accepted in this case, also.174 The Regulation is based on a certain convergence of the legal systems and this convergence is missing in this regard.175 53 Other legal scholars favour the opposite resolution.176 They use the theory of the Normzweck

and mainly argue that the aim of the Regulation is to unify the matter; that it makes no sense to apply the autonomous law on recognition and enforcement to the infrequent case of void marriage.177 In addition, they note that the distinction between void and voidable marriages is often very dogmatic and even arbitrary;178 that the Regulation would favour legal certainty.179 Some of these legal scholars admit that the wording of Art. 1 (1) (a) does not cover void marriages, but that the intention was to cover all decisions concerning status.180 54 One could argue that the wording of the Regulation and of the Borrás Report are conclusive

and support the first argument: that although the problem was known when the Brussels IIbis Regulation was conceived, there has been no initiative to change the wording; that this is supplementary support for the status quo and that it makes no sense to deviate from it for the very exceptional case of void marriages.181 All these arguments are valid when used in a system that makes a distinction between void and voidable marriages. Since it is not certain that the drafters were aware of this distinction, and the term ‘annulment’ can be used in a general way covering both categories of marriages, an autonomous interpretation has to take all systems into account and opt for the mainstream defining ‘annulment’ to also cover the infrequent case of void marriages.182 55 Marriage annulment proceedings after the death of one or both spouses was considered as

not falling within the scope of the Regulation. The Borrás Report explains that, in the majority of cases, those situations arise as preliminary questions relating to successions and that they will be resolved by international instruments such as the 1970 Hague Con-

182

Helms, FamRZ 2001, 257; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 23 et seq. Comp. Bogdan (fn. 17), p. 95. Helms, FamRZ 2001, 257. Kohler, NJW 2001, 13; Wagner, IPRax 2001, 73, 76. Helms, FamRZ 2001, 257, 259. Gruber, FamRZ 2000, 1129, 1130; Hau, FamRZ 2000, 1333; Schack, RabelsZ 2001, 615, 620; Vogel, MDR 2000, 1045 et seq. Gruber, FamRZ 2000, 1129, 1330; Hau, FamRZ 2000, 1333; Pirrung, ZEuP 1999, 834, 843; Schack, RabelsZ 2001, 615, 620. Rauscher/Rauscher (fn. 14), Art. 1 Brüssel II-VO, note 8. See also Widmer, FamPra.ch 2001, 689, 695 et seq. Mostermans, NIPR 2002, 263, 266 who is contradicting himself and finally opts for the exclusion of declaratory judgments. Gruber, FamRZ 2000, 1129, 1130; Hau, FamRZ 2000, 1333. Comp. Gördes, Internationale Zuständigkeit, Anerkennung und Vollstreckung von Entscheidungen über die elterliche Verantwortung (2004), p. 52. In this sense: Hatapka, in: Boele-Woelki/Gonzàlez Beilfuss (fn. 27), p. 247, 250.

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173 174 175 176

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vention on the recognition of divorces and legal separations or according to national law.183 This argument is not convincing, however, since it does not provide an answer for proceedings unrelated to successions, and since it is not expressed in the text of the Regulation. A more acceptable argument in accordance with Art. 1 (1) (a) would be that there is no marriage bond anymore that is to be dissolved. Indeed, the marriage has already been dissolved by the death of one of the spouses. Therefore, legal doctrine generally excluded such procedures from the scope of Art. 1.184 But the ECJ ruled that the formulation of Art. 1 (1) (a) does not make any distinction on the basis of the date on which such action is brought in relation to the death of one of the spouses or the identity of the person entitled to bring such an action.185 It cannot be excluded that even a third person may have an interest in having a marriage annulled, even after the death of one of the spouses.186 If the applicable law allows such an action, there is no reason to deprive the claimant, even if he is a third person, from the benefit of uniform rules laid down in the Regulation.187 4. Parental responsibility a) Concept Parental responsibility is a concept that is mainly used in international instruments.188 On an 56 international level, it was first introduced in the Convention of 20 December 1989 on the rights of the child. Art. 18 (1) of this Convention emphasises the principle that parents and legal guardians have the primary responsibility for the upbringing and development of the child. The Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children drew its inspiration from the former Convention.189 Although not known in every national legal system, and even difficult to translate for some legal systems, the term was considered broad enough to cover responsibility for the person of the child, for his or her property, as well as for the legal representation of the child, irrespective of the name given to the legal institution in question (e.g., parental responsibility, parental authority, guardianship, curatorship, legal administration).190 Art. 1 n° 2 provides the following description of the term parental responsibility: “(f)or the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation of the person or the property of the child.” Also, the European Convention of 25 January 1996 on the exercise of children’s rights,191 as 57 well as the Council of Europe’s White Paper of 15 January 2002 on principles concerning the

183 184 185 186 187 188

189 190 191

Borrás Report para. 27. Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO, note 27. Mikolajczyk v. Czarnecki (Case C-294/15) § 27. Mikolajczyk v. Czarnecki (Case C-294/15) § 35. Mikolajczyk v. Czarnecki (Case C-294/15) § 36. For an overview see: Busch, IPRax 2003, 219; Verhellen, in: CBR (ed.), Jongeren en Recht 2003, 305 et seq.; Degrooff/De Valkeneer, Rev.not.belge 2002, 395 et seq. Lagarde Report para. 14. Lagarde Report para. 14. ETS n° 160.

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establishment and legal consequences of parentage,192 make use of this concept under the term ‘parental responsibilities’. Here the plural is used to underline that parental responsibilities consist of a collection of duties and powers. The Commission on European Family Law (CEFL) is also using the term in the plural to underline that the term is a broad concept. It encompasses not only one package of rights and duties, but consists of many different rights and duties. In addition, the CEFL wants to emphasise that parental responsibilities are not only held by parents but may also be held by third persons in whole or in part.193 58 Although the terms ‘parental responsibility’ and ‘parental responsibilities’ are not common-

ly used in European legal systems,194 the contents reveal that there is a common core. In all jurisdictions, the concept of parental responsibility encompasses care and protection, maintenance of the personal relationship, the provision of education, legal representation, the determination of the child’s residence, and the administration of the child’s property.195 59 The Brussels II Regulation as interpreted by the Borrás Report left the definition of the

concept to the legal system of the Member State in which parental responsibility was under consideration.196 The rights and duties of a parent are indeed defined by national law, but for the application of a Regulation an autonomous interpretation is necessary.197 This autonomous interpretation is confirmed in the Brussels IIbis Regulation, which gives a definition of the scope of parental responsibility in (1) (b). The definition is clearly inspired by the definition in the 1996 Hague Convention and covers the attribution, exercise, delegation, restriction and termination of parental responsibility; describes those matters in particular in (2); gives a list of excluded matters in (3); and finally defines the term ‘parental responsibility’ in Art. 2 n° 7. b) Independence of matrimonial proceedings 60 The Convention and the Brussels II Regulation took parental responsibility issues only into

account insofar they were connected with proceedings relating to divorce, legal separation or annulment (Art. 1 (1) (b)). Jurisdiction ceased as soon as the judgment allowing or refusing the application for divorce, legal separation or annulment became final or, if proceedings on parental responsibility were still pending on that date, as soon as a judgment in these proceedings became final or as soon as all proceedings ended for another reason (Art. 3 (3)). The most important novelty in the Brussels IIbis Regulation is that the necessity of a link with matrimonial proceedings has been abolished. In accordance with Art. 5 of the 1996 Hague Convention on the protection of children, jurisdiction only depends on the habitual residence of the child (Art. 8). 192 193

194

195

196

197

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CJ-FA (2001) 16 rev; available under http://www.legal.coe.int/family. Boele-Woelki/Ferrand/Gonzàlez-Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law Regarding Parental Responsibilities (2007), p. 30 et seq. Exceptions are the Norwegian Children Act 1981 and the English Children Act 1989. Hereto Sverdrup/ Lødrup, Norwegian Report, in: Boele-Woelki/Braat/Curry-Sumner (fn. 15), Question 1 and 5. Boele-Woelki, in: Boele-Woelki (ed.), Common Core and Better Law in European Family Law (2005), p. 141, 146; Boele-Woelki/Braat/Curry-Sumner (ed.), (fn. 15), Question 1. Borrás Report, n° 24; Jänterä-Jareborg, in: Šarčević/Volken, Yearbook of Private International Law 1999, 1, 14; McEleavy, ICLQ 2002, 883, 884. Andreae, in: ERA-Forum 2003/1, 28, 35; Niklas (fn. 29), p. 42 et seq.; Spellenberg (fn. 20), Art. 1 Brüssel IIa-VO note 49.

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The independence of matrimonial proceedings implies that the scope of the Regulation not 61 only covers conflicts between the parents of the child or conflicts among the parents and the child, but also conflicts among the parents and a third person having parental responsibility. A claim for access from a grandparent, for example, falls within the scope of the Regulation.198 c) Children aa) Children of the family The Convention and the Brussels II Regulation only applied to the children of both spouses, 62 the biological as well as the adopted children of both spouses, and excluded the children of one of the spouses. Stepchildren or non-marital children were excluded, even if they were ‘children of the family’. Some Member States, especially the United Kingdom, were in favour of dealing with the parental responsibility for children from a previous union of one of the spouses. For example, under English law, the divorce courts have jurisdiction over children who are regarded as children of the family, which includes all the children, regardless of biological origin, who have been treated as children of the family.199 However, the view that prevailed was that the scope had to be restricted to children of both spouses, because the context of the Convention related to parental responsibility in close conjunction with divorce, separation or annulment proceedings.200 Furthermore, it was argued that the other solution could affect the fundamental rights of the father or the mother living in another Member State.201 The restriction to children of both spouses has rightly been seriously criticised, especially in 63 view of the increase of recomposed families.202 In some legal systems, such as the Dutch, English and Scottish, the partner of the parent can have parental responsibility.203 The restriction to children of both spouses can lead to different competence and recognition rules for children of the same family.204 The Brussels IIbis Regulation has taken this criticism into account and now ensures the equality of all children. The Regulation applies to all children.205 It makes no difference whether or not the parents live in a heterosexual or in a homosexual marriage, a registered partnership or factual union, whether or not the parents are living together and whether or not they are the biological parents of the child in question.

198 199

200 201 202

203 204 205

Comp. Storme, [email protected] 2005/1, 50, 51 et seq. S. 52 Matrimonial Causes Act 1973; s. 105 (1) Children Act 1989, Everall/Nichols, Fam.L. 2002, 674, 677 et seq. Borrás Report para. 25. Borrás Report para. 24. Widmer, FamPra.ch 2001, 689, 697. See also the opinions of the Economic and Social Committee 2001/C 14/17, OJ C 14/82 and 2003/C 61/15, OJ C 61/76. Cf. Art. 2 note 22 (Pintens). Ancel/Muir Watt, RCDIP 2001, 403, 426; Gaudemet-Tallon, Clunet 2001, 381, 387. Some authors underline that it is not clear whether the Regulation covers children conceived as a result of donor insemination or embryo transfer (Everall/Nicholls, Fam.L. 2002, 674, 678). Determination of parenthood is a question that is left to national substantive law, since the Regulation is restricted to jurisdiction, recognition and enforcement of judgements relating to dissolution of marriage and parental responsibility.

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In addition, the Regulation applies to single families and to children who are not living with their legal family but in a foster family or in an institution. 64 The Borrás Report underlines that in the light of the 1989 UN-Convention on the rights of

the child, each child is to be considered individually.206 bb) Definition of a child 65 Although Art. 2 gives a list of definitions used in the Regulation, the term ‘child’ has not been

defined. Contrary to other international instruments, there is no age limit. Of course the Regulation is only applicable to children under parental responsibility, which, in principle, means until the age of majority.207 As majority is a status problem, the national law of the child should be applicable, except in case of renvoi. This is the solution chosen by Art. 12 of the 1961 Hague Convention on the protection of minors. Other international instruments opt for a consistent definition: Art. 2 of the 1996 Hague Convention on the protection of the child fixes the age limit at eighteen years; the Convention on the civil aspects of international child abduction ceases to apply when the child attains the age of sixteen (Art. 4). In order to avoid contradiction with the 1996 Hague Convention, legal doctrine advocates an age limit of eighteen years.208 However, avoidance of contradiction seems no reason to set aside the rules on conflict of laws. Therefore, the age of majority should be determined in each individual case in accordance with the national law applicable to the child.209 In practice, this makes little difference as the age of majority in all the Member States is fixed at the age of eighteen years, but it will preserve, for example, the Scottish practice of only dealing with children under the age of sixteen.210 The Age of Legal Capacity (Scotland) Act 1991 distinguishes between a child under the age of sixteen and a young person between sixteen and eighteen years.211 The latter category has active legal capacity to enter into transactions, but the court has power to set aside the transaction when it is prejudicial to the child.212 The child has the right to choose his or her own religion, consent to or refuse medical treatment, and consent to adoption orders. For such cases, parental authority does not exist. The Recast Proposal solves the problem by defining the child as ‘any person below the age of 18 years’ (Art. 2 n° 7). 66 The Regulation is not applicable to decisions concerning persons having attained the age of

majority but kept under a protective regime for reasons other than age, e.g., mental illness.213

213

Borrás Report para. 26. Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO note 24. An important exception is the emancipation. In many systems a minor can exercise several rights from a certain age on (mostly fifteen or sixteen years), alone or with the assistance of his parents. Since the age of majority in most legal systems has been set at the age of eighteen and the difference between this age and the age of emancipation has become very small, cases of emancipation have become seldom. Spellenberg (fn. 20) Art. 1 Brüssel IIa-VO note 54. In this sense: Practice Guide, p. 8; Coester-Waltjen, in: Gottwald (fn. 75), p. 163, 168; Lowe, IFL 2004, 207. Comp. Fonti i Segura, REDI 2004, 273, 283 et seq. Lowe, IFL 2004, 205, 207. See Thomson, Family Law in Scotland (4th ed. 2002), p. 187 et seq. ALC (S) A 1991, s. 3 (1). Fonti i Segura, REDI 2004, 273, 283; Watté/Boularbah, Rev. Trim. Dr. fam. 2000, 550.

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208 209

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The same applies to those persons kept under a regime of prolonged minority, e.g., in Belgium where until 2014 in civil matters those persons were considered minors under the age of sixteen years.214 Since the term ‘child’ is not defined, the question arises whether the Regulation is applicable 67 to unborn children. In many legal systems, parental responsibility by the father over the unborn child is excluded;215 yet, in some legal systems it is included. In this respect there is no common core in the substantive law. Therefore, it seems wise to exclude the unborn child from the scope of the Regulation in the same way the 1996 Hague Convention on the Protection of Children (Art. 2) excludes it and to leave the matter to national law.216 d) Content The scope of parental responsibility covers its attribution, exercise, delegation, restriction 68 and termination (Art. 1 (1) (b)). These matters are further detailed in (2), which offers two Recitals, one with the topics included and another with the topics excluded. The Recitals are to a large extent inspired by Art. 3 and 4 of the 1996 Hague Convention on the protection of children. Since the term ‘parental responsibility’ covers a broad scope, it includes all rights and duties 69 of a holder of parental responsibility relating to the person and the property of the child.217 It comprises not only rights of custody and access, but also matters such as guardianship and placement of a child in a foster family or in institutional care.218 Custody and access have to be interpreted autonomously.219 aa) Included matters (2) includes: 70 (a) rights of custody and rights of access, e.g., all decisions on attribution and exercise of custody in case of separation and divorce, but also all decisions on disputes between the parents during the marriage including the return of a child.220 Examples are actions concerning the right to determine the child’s residence221 and actions to remedy the lack of agreement between the parents concerning the child’s traveling outside his Member State and concerning the issue of a passport.222 Further are included all decisions con-

214

215

216 217 218

219 220

221 222

Art. 487bis et seq. Belgian CC. Hereto Pauwels, R.W. 1973–74, 673 et seq.; Senaeve, R.W. 1992–93, 560 et seq. Since 2014 replaced by a regime of administration (Art. 488/1 Civil Code). E.g. England: Paton v. British Pregnancy Advisory Service Trustees (1979) QB 276; C v. S (1988) QB 135, CA. Both judgments refuse a husband’s application for an injunction to prevent an abortion. Comp. B v. H (Habitual residence: Wardship) (2002) 1 FLR 388. See Lowe/Douglas (fn. 16), p. 429–430, 637 and 673. Comp. Lowe, C.I.L. 2002–03, 315, 324. See Jault, Dr. & Patr. 2005/138, 58, 60 et seq. Practice Guide, p. 8. For an example: Hof Gent 5 September 2005, E.J. 2005, 183, note Roeland, R.W. 2005–06, 432. J.McB v. L.E (Case C-400/10 PPU) § 41; Rauscher/Rauscher (fn. 14), Art. 1 Brüssel IIa-VO note 27. As well as not in connection with an abduction Rauscher (fn. 14), Art. 1 Brüssel II-VO, note 15. Cf. Art. 10 and 11. J.McB v. L.E (Case C-400/10 PPU) § 40. Gogova v. Iliev (Case C- 215/15). Hereto Dutta, ZEuP 2016, 445; Koechel, FamRZ 2016, 438 et seq.

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cerning rights of access not only of parents but also of third persons, e.g., grandparents or brothers and sisters; (b)guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child. The wording indicates that a natural or a legal person can be the holder of parental responsibility;223 (d)the placement of the child in a foster family or in institutional care.224 As only civil matters are included, the placement in an institution as a result of criminal offences committed by the child is excluded;225 (e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. On the basis of Recital (9), a distinction has to be made between measures for the protection of the child’s property that fall within the scope of the Regulation and measures relating to the child’s property that do not concern the protection of the child. Recital (9) states that only the first category of measures is covered by the Brussels IIbis Regulation and that measures relating to the child’s property that do not concern the protection of the child should continue to be governed by the Brussels I Regulation.226 This distinction is rather peculiar since almost every measure concerning the child’s property will have a protective nature. From Recital (9) it can be deduced that the drafters of the Regulation had in mind conflicts between the parents. When parents dispute the child’s property, it may be necessary to take protective measures, e.g., to appoint a person or a body to assist or represent the child.227 It is for the court to assess, in the individual case, whether a measure concerns the protection of the child or not.228 71 The Recital is not exhaustive but merely illustrative.229 Protective measures that restrict

parental responsibility or discharge one from parental responsibility are not mentioned, but have to be included.230 bb) Excluded matters 72 Para. (3) excludes from the scope of the Regulation a series of matters mostly relating to

status or maintenance: (a) the establishment or contesting of a parent-child relationship; (b)decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption. This rule implies that placement of a child in a foster family, as a trial period for a later adoption, is excluded;231 (c) the name and forenames of the child. This exclusion is understandable since the name is a component of the status of the person and often determined by affiliation;232 223

232

This includes that a person other than a parent can have parental responsibility. Cf. Art. 2 note 22 (Pintens). See note 15 supra. Cf. note 14 supra. Recital 9; Rauscher/Rauscher (fn. 14), Art. 1 Brüssel II-VO, note 33. See also Practice Guide, p. 20 et seq. Practice Guide, p. 20. Practice Guide, p. 21. Practice Guide, p. 19. Sumampouw, in: Bundel Joppe (2002), p. 201, 204 et seq. Siehr, in: MünchKomm, X (6th ed. 2015), Art. EUEheVO note 32. Pintens/Will in: Int.Enc.Comp.L. V° Names, p. 51 et seq.

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(d)emancipation. Minors may be subject to emancipation under national law, mainly if they marry. Those decisions do not, in principle, qualify as matters of parental responsibility.233 They concern status and capacity. Consequently, they fall outside the scope of the Regulation;234 (e) maintenance obligations. They felt under the scope of the Brussels I Regulation and since 18 June 2011 under the Maintenance Regulation.235 (f) trusts or succession. Trusts fall within the ambit of Art. 5 n° 6 Regulation Brussels I; succession within the Succession Regulation. But the approval of an agreement for the sharing-out of an estate concluded by a guardian ad litem on behalf of minor children constitutes a measure relating to the exercise of parental responsibility.236 (g) measures taken as a result of criminal offences committed by children. This list of exclusions is not exhaustive.237 From the scope and the aim of the Regulation, it 73 can be deduced that all matters of status are excluded.238 Public measures of a general nature in matters of education or health, and decisions on social law or on the right of asylum and on immigration, are also excluded.239 Article 2: Definitions For the purposes of this Regulation: 1. the term ‘court’ shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1; 2. the term ‘judge’ shall mean the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation; 3. the term ‘Member State’ shall mean all Member States with the exception of Denmark; 4. the term ‘judgment’ shall mean a divorce, legal separation or marriage annulment, as well, as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision; 5. the term ‘Member State of origin’ shall mean the Member State where the judgment to be enforced was issued; 6. the term ‘Member State of enforcement’ shall mean the Member State where enforcement of the judgment is sought; 7. the term ‘parental responsibility’ shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access; 8. the term ‘holder of parental responsibility’ shall mean any person having parental responsibility over a child;

233 234 235 236 237 238 239

Practice Guide, p. 19. Comp. Gruber, IPRax 2005, 293, 296. Cf. note 40 supra. Matoušková (Cases C-104/14). See Dutta, ZEuP 2016, 443 et seq. Contra: Jault, Dr. & Patr. 2005/138, 58, 61. Recital (10). Recital (10).

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9. the term ‘rights of custody’ shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence; 10. the term ‘rights of access’ shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time; 11. the term ‘wrongful removal or retention’ shall mean a child’s removal or retention where: (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and (b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.

Bibliography Dilger, Die Regelungen zur internationalen Zuständigkeit in Ehesachen in der Verordnung (EG) Nr. 2201/2003, in: Studien zum ausländischen und internationalen Privatrecht, n° 116 (2004) Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (2003)

Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht. Kommentar, IV, (4th ed. 2015), Art. 2 Spellenberg, in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2015), Brüssel IIa-VO, Art. 2.

General purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Definitions 1. Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Member State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 a) The term ‘judgment’ . . . . . . . . . . . . . . . . . . . . 10 b) Judgment attributing a new civil status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

aa) Divorce, legal separation and annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 bb) Parental responsibility . . . . . . . . . . . . . . . . . . 15 5. Member State of origin . . . . . . . . . . . . . . . . . 16 6. Member State of enforcement . . . . . . . . . . 17 7. Parental responsibility . . . . . . . . . . . . . . . . . . 18 8. Holder of parental responsibility . . . . . . . 21 9. Rights of custody . . . . . . . . . . . . . . . . . . . . . . . . 24 10. Rights of access . . . . . . . . . . . . . . . . . . . . . . . . . . 25 11. Wrongful removal or retention . . . . . . . . 28

I. II.

I. General purpose 1 Art. 2 of the Brussels IIbis Regulation contains a list of definitions, which was not the case in

the Convention or in the Brussels II Regulation, wherein only the term ‘judgment’ was defined (Art. 13 Brussels II Regulation). The list is clearly inspired by common law legislation and employs the method of concept definitions. The value of this method is the systematic use of the same terminology for the same content. With good reason, Spellenberg emphasises that these definitions share authority with the Articles because they specify and clarify their content and meaning, but they cannot have more binding effect than the Articles.1 Therefore, they cannot prevent a teleological interpretation of the Articles them-

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Article 2

selves. They do not have the function they have in English law where they guarantee a strict interpretation of the law. The definitions cover general terms as ‘court’, ‘judge’, ‘Member State’ and ‘judgment’. Other 2 general terms, for example ‘habitual residence’,2 are missing.3 Further, the list of definitions only focuses on parental responsibility and does not contain the part on matrimonial proceedings. But also in the part on parental responsibility, important definitions are missing, e.g., ‘child’. Here interpretation will be necessary.4 The definitions clarify the Articles of the Regulation and should always be read together, e.g., 3 the meaning of ‘judgment’ in Articles 21 et seq. should be understood in combination with Art. 2 n° 4. Only then one can argue that judgments denying the divorce claim are not recognised. The Recast Proposal introduces some clarifications and linguistic adaptions. Further a new 3a definition of the child is included.5 II. Definitions 1. Court The term ‘court’ covers all authorities in the Member States with jurisdiction in matters 4 falling within the scope of the Regulation, pursuant to Article 1 (Art. 2 n° 1). This definition implies that the term ‘court’ has to be understood as all authorities, judicial or otherwise, with jurisdiction in matrimonial matters and matters of parental responsibility in the Member States.6 The same rule can be found in Art. 1 of the 1970 Hague Convention on the recognition of divorces and legal separations. The Recast Proposal replaces ‘court’ by ‘authority’. 2. Judge The term ‘judge’ means the judge or an official having powers equivalent to those of a judge 5 in the matters falling within the scope of the Regulation (Art. 2 n° 2). This definition means that the term ‘judge’ is to be interpreted in accordance with the term ‘court’ and covers not only members of the court but also officers of the court as well as officials of administrative or social bodies with jurisdiction in matrimonial matters and in matters of parental responsibility.7

1 2

3 4 5 6 7

Spellenberg, Einl zur Art. 1 Brüssel IIa-VO note 58 and Art. 2 note 2. ‘Domicile’ is not defined in Art. 2 but in Art. 3 (2): Domicile shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland. Hereto Richez-Pons, Dr. & Patr. 2005/138, 53 et seq. Cf. Art. 3 notes 8–11 (Borrás). Cf. Art. 1 note 65 et seq. (Pintens). See Art. 1 note 65 (Pintens). Cf. Art. 1 note 4 et seq. (Pintens). Cf. Art. 1 note 4 et seq. (Pintens)

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3. Member State 6 The definition of ‘Member State’ is all Member States, with the exception of Denmark (Art. 2

n° 3), and determines the territorial scope of the Regulation. Denmark, Ireland and the United Kingdom are not participating in Community action under Art. 67 et seq. TFEU but Ireland and the United Kingdom reserved an opt-in possibility and made use of it.8 The Protocol on the position of Denmark, annexed to the Treaty of Amsterdam, does not have an opt-in clause, but at any time Denmark may inform the other Member States that it no longer wishes to avail itself of all or part of this Protocol. In that event, Denmark would apply in full all relevant measures then in force taken within the framework of the European Union. In this way Denmark can still participate in the activities of the European Union under Art. 81 TFEU and must apply the Brussels IIbis Regulation. 7 The Regulation applies in the old Member States according to Art. 52 and 355 TFEU, with

exception of the associated regions mentioned in the annex II to the TFEU. In addition, since the Regulation belongs to the acquis communautaire, it is also applicable in the new Member States.9 8 Finland and Sweden made use of the option of Art. 59 (2) (a) and declared that the Con-

vention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden, comprising international private law provisions on marriage, adoption and guardianship, will fully apply in relations between Finland and Sweden instead of the rules of the Regulation (see Art. 59 and annex VI). 4. Judgment 9 The term ‘judgment’ means a divorce, legal separation or marriage annulment, as well as a

judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision (Art. 2 n° 4). The Recast Proposal replaces ‘judgment’ by ‘decision’. a) The term ‘judgment’

10 The term ‘judgment’ has to be interpreted broadly to cover a decree, an order or a decision

whatever the competent authority may be.10 Authentic documents and agreements enforceable in the Member State in which they have been drawn up, registered or concluded, have to be recognised and declared enforceable as a judgment (see Art. 46). 11 The judgment has to have legal res judicata effect. The Borrás Report draws special attention

to Dutch divorce judgments that must be registered in the registers of civil status to be effective.11 If there is no application for registration within six months from the date when 8

9

10 11

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Recital 30; Art. 1–3 Protocol on the position of the United Kingdom and Ireland annexed to the Treaty of Amsterdam. As from 1 March 2005 regarding all of the then Member States with the exception of Denmark, as from 1 January 2007 as regards Bulgaria and Romania and from 1 July 2013 as regards Croatia. See Art. 1 note 4 et seq. (Pintens). For provisional orders cf. Art. 20 and for orders as to costs cf. Art. 49. Borrás Report para. 60.

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Chapter I: Scope and Definitions

Article 2

the judgment became final (and not from the date of the entry of judgment, as the BorrásReport wrongly states),12 the judgment has no res judicata effect (Art. 163 Dutch CC). The res judicata effectivity of a judgment has to be distinguished from the legal force of a 12 judgment, i.e. the question of whether the judgment is final or still appealable (see art. 21). b) Judgment attributing a new civil status The Regulation applies in principle only to constitutive judgments attributing a new legal 13 status.13 aa) Divorce, legal separation and annulment The Regulation only applies to positive judgments.14

14

bb) Parental responsibility Judgments on parental responsibility have to be treated differently. The definition in Art. 2 15 n° 4 specifies ‘judgment relating to parental responsibility’ and, therefore, includes positive as well as negative decisions.15 Furthermore, a judgment that is negative for one party is positive for the other one.16 This means that a judgment denying, for example, custody or access must be recognised. 5. Member State of origin The term ‘Member State of origin’ means the Member State where the judgment to be 16 enforced was issued (Art. 2 n° 5). The term ‘Member State of origin’ is used so that the Regulation reads more easily.17 6. Member State of enforcement The term ‘Member State of enforcement’ means the Member State where enforcement of the 17 judgment is sought (Art. 2 n° 6). The term ‘Member State of enforcement’ is used so that the Regulation reads more easily.18 7. Parental responsibility The term ‘parental responsibility’ means all rights and duties relating to the person or the 18 property of a child that are given to any natural or legal person by judgment, by operation of law or by an agreement having legal effect. This includes rights of custody and rights of access (Art. 2 n° 7). The concept of parental responsibility has been given a broad definition

12 13 14 15 16

17 18

Borrás Report para. 60. Cf. supra Art. 1 note 34 (Pintens). Cf. supra Art. 1 note 34 (Pintens). Borrás Report para. 60. Borrás Report para. 60; Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (2003) p. 55 et seq. COM (2002) 222 final/2, p. 7. COM (2002) 222 final/2, p. 7.

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including all rights and duties of any person having such a responsibility.19 Those rights are described in art. 2 n° 9 and 10. The combination of n° 7, 9 and 10 leads to a definition that is very comparable with the definition in Principle 18 of the White Paper 2002.20 Here parental responsibilities are defined as a collection of duties and powers, which aim at insuring the moral and material welfare of children, in particular care and protection, maintenance of personal relationships, provision of education, legal representation, determination of residence and administration of property. In a more modern approach, the Regulation very rightly opted for “rights and duties” instead of “duties and powers”.21 19 The definition emphasises that both a natural and a legal person can be holder of parental

responsibility.22 20 The use of a new concept with a broad definition confirms that an autonomous interpreta-

tion of the concept of ‘parental responsibility’ should be applied.23 8. Holder of parental responsibility

21 The term ‘holder of parental responsibility’ means any person having parental responsibility

over a child (Art. 2 n° 8). The term ‘holder of parental responsibility’ is used so that the Regulation reads more easily.24

22 The definition clarifies that persons other than parents can also be holders of parental

responsibility. The term ‘holder of parental responsibility’ encompasses not only those holders who have acquired parental responsibility as a consequence of affiliation or through guardianship, curatorship or similar institutions, but also those holders who have acquired parental responsibility as a partner of a parent holding parental responsibility. Whereas in most legal systems, the attribution of parental responsibility is only possible through a stepparent adoption, some legal systems provide other possibilities to obtain parental responsibility.25 Under Dutch law, the spouse or the registered partner of a parent obtains parental responsibility ex lege over a child born during their marriage or registered partnership, unless legal ties exist between the child and another parent.26 Under Austrian law, a 19 20 21

22 23 24 25

26

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Cf. Art. 1 note 56 et seq. (Pintens) Cf. Art. 1 note 57 (Pintens). Comp. with the definition of the CEFL-Principles Regarding Parental responsibilities: “Parental responsibilities are a collection of rights and duties aimed at promoting and safeguarding the welfare of the child. They encompass in particular: (a) care, protection and education; (b) maintenance; (c) determination of residence; (d) administration of property, and (e) legal representation” (Principle 3:1). Hereto BoeleWoelki/Ferrand/Gonzàlez Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law Regarding Parental Responsibilities (2007), p. 25 et seq. Cf. Art. 1 note 70 (Pintens). Long, Familia 2006, 1127, 1146. Cf. Art. 1 note 59 (Pintens). COM (2002) 222 final/2, p. 7. Boele-Woelki, in: Boele-Woelki (ed.), Common Core and Better Law in European Family Law (2005), p. 141, 153 et seq. Art. 1:253 Dutch CC. See Boele-Woelki/Schrama/Vonk, Dutch report, in: Boele-Woelki/Braat/CurrySumner (ed.) European Family Law in Action, III, Parental Responsibilities, in EFL-series, n° 9 (2005), Question 27.

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Chapter I: Scope and Definitions

Article 2

stepparent can be considered a foster parent and may obtain a transfer of parental responsibility by court order.27 Under the English Children Act 1989, a stepparent28 can acquire parental responsibility by residence order. Under the English Adoption and Children Act 2002 a stepparent who is married29 to the child’s parent will be able to obtain parental responsibility by agreement or by a court order.30 National law defines the holder of parental responsibility.31 Furthermore, any person who has obligations and rights vis-à-vis a child can qualify as a 23 holder of parental responsibility, even if he or she is the holder of only one element of parental responsibility. In this respect, a person holding access rights, e.g., a grandparent, is also a holder of parental responsibility.32 9. Rights of custody The term ‘rights of custody’ includes rights and duties relating to the care of the person of a 24 child, and in particular the right to determine the child’s place of residence (Art. 2 n° 9). The rights of custody are defined in the same way as in Art. 3 of the 1996 Hague Convention on the protection of children. 10. Rights of access The term ‘rights of access’ includes in particular the right to take a child to a place other than 25 his or her habitual residence for a limited period of time (Art. 2 n° 10). The term ‘rights of access’ strengthens the rights of parents or other persons who have contact with the child. Other instruments, such as the Convention of the Council of Europe of 15 April 2003 on contact concerning children,33 use the term ‘contact’ and by so doing strengthen the fact that the child is also a holder of certain rights of contact with holders of parental responsibility.34 Although the Regulation accentuates the first element, the term ‘right of access’ encompasses all the elements of contact, including the right of the child to have contact with a parent or a person other than the holder of parental responsibility with whom he resides. The rights of access are defined in the same way as in Art. 3 of the 1996 Hague Convention 26 on the protection of children. However, the concept is much broader and also includes, for example, contact by telephone or e-mail.35 Contrary to ‘parental responsibility’, where the holder is defined, there is no definition of the 27 ‘holder of rights of access’. Under Brussels II, a restricted interpretation was favoured. 27 28 29 30

31 32 33 34 35

Art. 186a Austrian CC. See Roth, Austrian report, in Boele-Woelki et al. (fn. 26), Question 27. Married or not to the parent. Cohabitation is insufficient. Amendment to the Children Act 1989. See Lowe, English report, in: Boele-Woelki et al. (fn. 26), Question 27. J.McB. v. L.E. (Case C-400/10 PPU) § 43. Francq, Rev.trim.dr.fam. 2005, 691; Jault, Dr. & Patr. 2005/138, 58, 62. ETS N°. 19/2 (2). Explanatory Report, no. 6. Practice Guide, p. 24.

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Brussels II restricted the holders of parental responsibility to the parents, having regard to the necessary link between conflicts of parental authority and matrimonial proceedings. Equally, rights of access were restricted to the parent who was not exercising his or her rights of custody.36 Since the Brussels IIbis Regulation has a broader scope – third persons can be holders of parental responsibility – there is no reason to exclude rights of access from the scope of the Regulation when the holder is a third person. In this way the Regulation is in accordance with the 2003 Convention on contact concerning children. This Convention strengthens the importance of contacts with other persons having family ties with the child and is in line with several judgements of the European Court of Human Rights recognising contact rights between the child and close relatives.37 Art. 5 (1) of the Convention recognises contact rights between the child and persons other than his or her parents having family ties with the child. Para. (2) of this Article leaves it to the State to extend this provision to persons other than those mentioned in (1). 11. Wrongful removal or retention 28 The definition copies the one for child abduction found in Art. 3 of the 1980 Hague Con-

vention on Child Abduction.38 The term ‘wrongful removal or retention’ means a child’s removal or retention where (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention, and (b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone,39 or would have been so exercised but for the removal or retention. The definition specifies that custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility. This last part of the definition concerns a matter of national law. The Recast Proposal strikes it.

29 The definition has to be read in conjunction with Articles 10 and 11 of the Regulation.

36

37 38

39

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Coester-Waltjen, in: Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 163, 168. et seq. The Commission favoured a broader interpretation (Commission Working document of 27 March 2001 COM (2001) 166 final, p. 14. ECHR 13 July 2000 (Scozari and Giunta v. Italy), Series A, no. 221. See C. v. M. (Case C-376/14 PPU) § 46; J.McB. v. L.E. (Case C-410/10 PPU. See Rauscher/Rauscher, Art. 2 Brüssel IIa-VO note 26 et seq.; Kohler/Pintens, FamRZ 2015, 1453 et seq. J.McB. v. L.E. (Case C-410/10 PPU) stating that the Regulation does not preclude a Member State from providing by its law that the acquisition of custody rights by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court. See Dutta, ZEuP 2016, 446 et seq.

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Chapter II: Jurisdiction

Article 3

Chapter II: Jurisdiction Section 1: Divorce, legal separation and marriage annulment Article 3: General jurisdiction 1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: – the spouses are habitually resident, or – the spouses were last habitually resident, insofar as one of them still resides there, or – the respondent is habitually resident, or – in the event of a joint application, either of the spouses is habitually resident, or – the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or – the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses. 2. For the purpose of this Regulation, ‘domicile’ shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

Bibliography Alvarez, Doble nacionalidad y competencia judicial internacional en material matrimonial (a propósito de la STJCE de 16 de julio de 2009), Diario La Ley, nº 7312, 30 December 2009 Baratta, Separazione e divorzio nel Diritto internazionale privato italiano, Capítulo XXII, Vol. I, Trattato di Diritto di famiglia (2002) Beaumont/Moir, Brussels Convention II: A new private international law instrument in family matters for the European Union or the European Community?, (1995) 20 Eur. L. Rev. 268 Boele-Woelki/Braat/Sumner (eds.), European Family law in Action, vol. I: Grounds for divorce (2003) Bonomi, Il Regolamento comunitario sulla competenza e sul riconoscimento in material matrimonial e di potestà dei genitori, Riv. dir. int. 2001, 298 Borrás, Commentary at Civil Law – European Judicial Cooperation, electronic publication of the General Secretariat of the Council, 2013, pp. 285–310 (in the English version)

Alegría Borrás

Borrás, Grounds of jurisdiction in matrimonial matters: recasting the Brussels IIa Regulation, Nederlands Internationaal Privaatrecht (NIPR), 2015, 1, pp. 3–9 Borrás, What about matrimonial matters? Workshop on Recasting the Brussels IIa Regulation, organized by the European Parliament in Brussels, on 8 November 2016, accessible at http://www.europarl.euro pa.eu/news/en/news-room/20161026IPR49119/com mittee-on-legal-affairs-meeting-08112016-(pm) Caro, La naturaleza mutable de los foros de competencia del Reglamento 1347/2000 en material matrimonial y su incidencia en el control de oficio de la competencia, in: La Unión Europea ante el siglo XXI: los retos de Niza (2003) p. 191 Caro, Competencia judicial internacional en procedimiento de nulidad matrimonial iniciado por un tercero tras el fallecimiento de uno de los cónyuges, La Ley Unión Europea, nº 44, January 2017 d’ Oliveira, Nationality and the European Union af-

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Article 3 ter Amsterdam, in: O’ Keefe/Twomey (eds.), Legal issues of the Amsterdam Treaty (1999), p. 395 Esplugues, El divorcio internacional, Valencia, 2003 Hau, Das System der internationalen Entscheidungszuständigkeit im europäischen Eheverfahrensrecht, FamRZ 2000, 1355 Gómez Jené, El Reglamento comunitario en materia matrimonial: criterios de aplicación personal, privilegios de los nacionales comunitarios y discriminación por razón de la nacionalidad, La Ley 5321 (2001), 1 Guez, La notion de résidence habituelle au sens du Règlement “Bruxelles II”, à propos de C. Aix-enProvence, 18 novembre 2004, Gaz.Pal., 15 January 2005, p. 20 I. II. III.

Preliminary remarks . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Scope of application 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Brussels IIbis Regulation Hau, Das System der internationalen Entscheidungszuständigkeit im europäischen Eheverfahrensrecht, FamRZ 2000, 1355 Hausmann, New international procedure in matrimonial matters in the European Union, EuLF 2000–01, 271 Pirrung, Unification du droit en matière familiale: la Convention de l’Union européenne sur la reconnaissance des divorces et la question de nouveaux travaux d’UNIDROIT, Rev. dr. unif. 1998 Richez/Pons, Habitual residence considered as a European Harmonization factor in family law (regarding the Brussels II-bis Regulation), in: Boele/Woelki, Common Core and Better law in European Family Law (2005), p. 355.

IV. V. VI.

2. Material scope . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Jurisdiction based on habitual residence 8 Jurisdiction on the grounds of nationality 12

I. Preliminary remarks 1 Article 3 constitutes the backbone of the rules on international jurisdiction in matrimonial

matters as laid out in Brussels IIbis Regulation. Other jurisdiction rules on this matter are contained in Arts. 4 and 5 for the limited cases regulated therein. On the nature of these types of jurisdiction, see Art. 6. As it is said in the Explanatory Memorandum of the Commission Proposal of 2016,1 “for matrimonial matters the preferred policy option is retaining the status quo”. It is the result of the fact that “only limited evidence of existing problems (including statistics) was available at this stage to allow for a precise indication of the need to intervene and the scale of the problems, and for a fully informed choice of any considered option”. In fact, no modification is introduced in art. 3 with the exception of the substitution of the term “court” by the term “authority” to include any judicial or administrative authority with jurisdiction in matrimonial matters (e.g., a Notary) taking into account the evolution in the different Member States in the sense that not only the Courts are competent to decide on matrimonial matters. Much more ambitious is the draft prepared by the GEDIP in its meeting in Luxembourg in 2015. In the meeting held in Milan in September 2016, the Group did not continue studying the draft on divorce and concentrated their efforts on studying and proposing some modifications on the proposal of the Commission on questions related to children.2 1

2

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Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), document COM(2016)411/2, of 30 June 2016. Its function is to study points of convergence between private international Law and European Union law. For proceedings since 1991, see notes by J.D. González Campos, A. Borrás and F.J. Garcimartín, in: Revista Española de Derecho internacional. The Group’s website may also be consulted (http://www.drt.i

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It must be noted that, in general terms, there are only objective connections which exclude 2 the possibility of choice of court on the part of the spouses. In fact, citizens would like to be able to choose their own competent court and applicable law.3 On 17 July 2006 the Commission proposed a Regulation amending Council Brussels IIbis Regulation as regards jurisdiction, and introducing rules concerning applicable law in matrimonial matters.4 However, as the required unanimity was not reached, Regulation 1259/2010 was adopted, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, but without modifying the rules on jurisdiction.5 The Commission’s former amendment proposal of 2006 was to introduce a new Art. 3 a, regarding choice of court by the parties in proceedings relating to divorce and legal separation, allowing the spouses to choose any of the grounds of jurisdiction listed in Art. 3, or the courts at the place of the spouses’ last common habitual residence for a minimum period of three years or the courts of a Member State when one of the spouses is a national of that Member State or, in the case of the United Kingdom or Ireland, has his or her “domicile”. The proposal intended a limited possibility for the spouses to designate the competent court by common agreement, taking into account the existence of substantial links with a Member State.6 Under the proposal, the existence of these links could also be founded on the basis of the proposed Art. 7 on residual jurisdiction. In the 2016 Proposal, a rule on the possibility for the spouses to designate the competent authorities has not been included, which is one of the differences with the proposal of the GEDIP. It is only to be expected that during the negotiation of the recast Regulation a rule in that sense could be included, although the possibilities of choice have to be limited, as proposed by the GEDIP. With the possibility of choice of law in Regulation 1259/2010 existing, it seems coherent to have a rule accepting the choice of court. II. Legislative history This provision is taken directly from Art. 2 of the Brussels Convention of 1998 (Brussels II) 3 and Regulation 1347/2000 (Brussels Regulation II). The initiative to modify the latter and to transform it into the current Brussels IIbis Regulation referred only to matters of parental responsibility (see Arts. 8 et seq.), without the implementation of any modifications on matters relating to marriage disputes. Although in these circumstances one might bring into question the convenience of keeping the matters of marriage disputes and parental responsibility disputes in one instrument, this is not the place to enter into such a discussion. In fact, the proposal of the GEDIP is only on jurisdiction, applicable law, recognition and enforcement of decisions in matrimonial questions. The option adopted in favour of keeping both matters in the same instrument is justified in Recital (6), stating that “since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is more appropriate to have a single instrument for matters of divorce and

3 4 5 6

cl.ac.be/gedip) and the volume Building European private international law. Twenty years’ work by GEDIP (M. Fallon, P. Kinsch and Ch. Kohler [eds.]), Intersentia, Mortsel, 2011. On the Session of Luxembourg, Borrás, A. Garcimartín, F.J., 25.ª Reunión del Grupo Europeo de Derecho Internacional Privado (Luxemburgo, 18 A 20 De Septiembre De 2015), Revista Española de Derecho Internacional, Vol. 68/1, 2016, pp. 249–253. As described in Flash Eurobarometer, Family Law. Analytical Report, October 2006. Document COM (2006) 399 final, of 17 July 2006. Regulation of the Council 1259/2010 of 20 December 2010, OJ 343, 29 December 2010. Borras, in: Nederlands Internationaal Privaatrecht (NIPR), 2015, 1, pp. 6–7.

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parental responsibility”. This is debatable if one takes into account the fact that there are very narrow limits within which courts competent in divorce proceedings may rule on matters relating to parental responsibility which are linked to such proceedings (see Art. 12). III. Scope of application 1. Personal scope 4 A key issue which ought to be highlighted is that Brussels IIbis Regulation, in the same way

as its predecessors the Convention of 1998 and Regulation 1347/2000 – does not contain a rule which defines the personal scope of application of the Regulation. That is to say, it does not contain a rule equivalent to that of Art. 2 Brussels I Regulation (Art. 4 in Regulation 1215/2012), which requires as a necessary condition for applicability the domicile of the respondent in a Member State. This is without prejudice to the existence of rules which allow the respondent to be brought before the courts of another Member State. In the case Brussels IIbis Regulation the respondent is not required to have his domicile in a Member State, nor is there any other rule which defines the personal scope of application: it is sufficient that one of the connections laid out in Art. 3 is applicable. As stated in the Report,7 “the exclusion of a general forum and the establishment of a concrete list of forums is a logical step since, precisely as a result of marriage breakdown, the situation constantly changes at short notice”. In this regard, see the Sundelind case in the comment in paragraph a), second indent (infra note 15), and in the comments to Arts. 6 and 7. 2. Material scope

5 The scope of application of the Regulation on matrimonial matters is extremely limited,

given that it refers solely to the dissolution of or release from matrimonial ties. As stated in Recital (8), “as regards judgments on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures”. This gives rise to a number of consequences, specifically those relating to decisions on maintenance obligations.8 It should also to be taken into account the adoption of Regulation 2016/1103 on matrimonial property regimes.9 In addition, the approach has considerable drawbacks as, in some cases, it impedes the same courts from being able to 7 8

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Borrás Report para. 28. As regards maintenance obligations, it must be remembered that when the Brussels IIbis Regulation was adopted, matters relating to jurisdiction and the enforcement of decisions were regulated by the Brussels I Regulation. As Recital (11) states, maintenance obligations are excluded from the scope of this Regulation as these are already covered by the Brussels I Regulation. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5 (2) Brussels I Regulation. Subsequent to this, Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ EU 2009 L 7/1) was adopted, and applies from 18 June 2011 onwards (Art. 76). Regulation 2016/1103, of 24 June 2016, implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ 183, of 8 July 2016.

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settle and rule on these matters. This is arguably a repercussion of the inability to move forward in the European Union IV. General rule Art. 3 contains the general rule relating to jurisdiction in divorce, legal separation or mar- 6 riage annulment matters, in accordance with the civil nature of the matter (see Art. 1) and with the definitions included in Art. 2, This provision contains seven alternative jurisdictional criteria, without any hierarchy es- 7 tablished between them (on their nature, see Art. 6) and divided into two categories, the first being based on habitual residence and the second being based on nationality or “domicile”.10 For some, the range of options contained in this Art. is excessive, and they must be unified to avoid forum shopping which might arise as a result of the non-unification of conflict-of-laws rules and the diversity of solutions which the laws of the Member States provide in matrimonial matters.11 In fact, this should not be construed as a criticism of the criteria included therein, but rather as a lament for the absence of any unified conflict-of-laws rules. Closer analysis of the aforementioned initiative by the Commission, and the way in which this has led to enforced cooperation, clearly shows that this is a problem and that the Member States, who are ready and willing to make progress on the subject of jurisdiction and the recognition and enforcement of decisions, are not willing to do so on the matter of applicable law. As pointed out in the Report Borrás,12 the adopted jurisdictional criteria “are designed to meet objective requirements, are in line with the interests of the parties, involve flexible rules to deal with mobility and are intended to meet individuals’ needs without sacrificing legal certainty”. The result, with seven alternative criteria, gives rise to a clear favor divortii, from the perspective of the free circulation of decisions within the European Union on matrimonial matters (see Art. 21 in particular). It is not surprising, therefore, that the majority of debates on the preparation of this text focused on which jurisdictional criteria ought to be included in it.13 No modification is included in the 2016 Proposal. On the contrary, in the GEDIP Draft, two kinds of modifications are included: 1) the reduction of the number of grounds of jurisdiction and 2) the substitution of the alternative grounds of jurisdiction by a priority ground and other subsidiary grounds. In the Memorandum on the 2016 Proposal of the Commission, the reasons to maintain the current flexibility “are that the benefits of reducing or abolishing this flexibility (favoured by some Member States) would be outweighed by the disadvantages of the options considered to respond to the ‘rush to court’ problem or the transfer or jurisdiction or hierarchy of grounds) signalled by other Member States. Also, spouses not having common EU nationality who live in a third State but retain links with a certain Member State and want to get divorced will continue to rely on the

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12 13

On the connections used, see Bogdan, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International family law for the European Union (2007), p. 303. González Beilfuss, in: Fulchiron/Nourissat (eds.), Le nouveau Droit communautaire de la responsabilité parentale, Paris, 2005, p. 53. Among others, see Baratta, Separazione e divorzio nel Diritto internazionale privato italiano, Chapter XXII, in: Trattato di Diritto di famiglia, vol. I (2002), p. 1587. Paragraph 27. In the words of Pirrung, Rev. dr. unif. 1998, p. 633, Art. 3 (formerly Art. 2) this manifests the obvious characteristics of its history, which one might refer to as “d’un compromis à l’autre”.

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national rules to access EU courts or to have their decision (obtained in a third country) recognized in the European Union”. V. Jurisdiction based on habitual residence 8 The first group of jurisdictional criteria is based on habitual residence (sub-paragraph (a)).

In this case, it is worth noting that not all criteria were greeted with the same level of acceptance during the negotiations, given that, whilst four of them were accepted without any difficulty, the last two criteria were only accepted in order to bring about the possibility of an agreement on the text as a whole at the very last minute. As is the norm in the convention or in the instruments of the European Union, there is no definition of what is meant by habitual residence, or any rule similar to that laid out in Art. 59 Brussels I Regulation (art. 62 in Regulation 1215/2012). However, the indications of the Court of Justice may be followed in order to understand that it means “the place where the person had established, on a fixed basis, his permanent habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence”,14 a decision which has been referred to on numerous occasions in relation to several matters. However, it is vital to take into account the specific difficulties which, within the scope of Family Law, relate to the determination of the place of habitual residence. The concept is crucial for the competent authorities in their issuing of decisions on divorce,15 taking into account the differences between the various substantive domestic laws. In this regard, see also the difficulties in relation to the determination of the habitual residence of the child in matters relating to parental responsibility (see, in particular, Arts. 8 and 9). 9 The four criteria which were accepted without any difficulty, given that they are founded on

the clear links between the matrimony and a Member State are as follows: Firstly, the jurisdiction of the courts of the State in which both spouses have their habitual residence, even if they obviously do not cohabit. In fact, this jurisdiction criterion covers the vast majority of cases and is the simplest. Secondly, the jurisdiction of the courts of the State where the spouses had their last habitual residence, if one of the spouses still lives there. This is a common case, given that often when there is a marriage breakdown one of the spouses vacates his/her habitual residence and moves to another country, e.g. because this was the place of the habitual residence prior to marriage or is the state of nationality. The situation of the spouse who moves away was an ever-present concern during the discussions, which translated into the introduction of the jurisdiction criteria referred to in the fourth and fifth indents of this paragraph.16 Thirdly, the jurisdiction of the courts of the habitual residence of the respondent, which constitutes a general criterion of international jurisdiction, based on the principle actor sequitur forum rei. 14

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Although the case refers to a social security matter affecting migrant workers. Ets. Angenieux v. Hackenberg (Case 13/73), (1973) ECR 935. In this regard, see Guez, Gaz.Pal., 15 January 2005, p. 20. On the use of this criterion, see the decision in Sundelind, which is referred to in the commentary on Arts. 6 and 7.

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Fourthly, in the case of a joint application, the jurisdiction of the courts of the Member State of the habitual residence of either of the spouses is established. This is the only, limited, choice which is permitted in the matter of choice of forum. These four grounds of jurisdiction are the only ones maintained in the GEDIP proposal and are hierarchized and not alternative. As noted above, the negotiations were marked by a concern for the spouse who, as a result of 10 the marriage breakdown, moves to another Member State. The acceptance of jurisdictional criteria for these types of cases was difficult, given that they constitute a forum actoris. For this reason, the resulting criteria are subject to specific conditions, namely the elapsing of a certain period of time. These jurisdictional criteria are included in several domestic legal systems, and the Member States in question were not prepared to renounce them. Almost 20 years after the original negotiations, it seems that the situation will not change, according to the 2016 Proposal of the Commission. The criteria are as follows: – The jurisdiction of the courts of the State of the habitual residence of the applicant if he/ she had resided in said State for at least one year immediately prior to the application. This is, therefore, a criterion based solely on the habitual residence of the applicant with a duration which shows a certain link with the state of residence. – However, the previous criterion was deemed insufficient by some Member States. For this reason, the jurisdiction of the courts of the State of the applicant’s habitual residence was subsequently established, provided he/she had resided in said State for at least six months immediately prior to making the application, and providing that he/she was a national of said Member State (or in the case of the United Kingdom and Ireland, had his/her domicile there). For the purposes of this provision, paragraph 2 of Art. 3 provides that the term “domicile” shall be interpreted in accordance with the meaning given in the legal systems of the United Kingdom and Ireland. This is, therefore, a criterion founded on the habitual residence of the applicant, but with the requirement that the applicant be a national of said State or, in the case of the United Kingdom and Ireland, that the applicant be domiciled there. The requirement of this connection translates, in comparison with the previous criterion, into the reduction of the length of residence, which goes from one year to six months. A problem on these two rules arose in the Judgment of the Court of Justice of 13 October 11 2016 (Mikolajczyk)17 in the case of an action for annulment of marriage brought by a thid party after the death of one of the spouses. After considering that the case falls within the scope of the Regulation (see Article 1), the court, following the Opinion of the General Advocate Wathelet, did not consider the difference established in the BorrásReport in the sense that the inclusions is done “without becoming envolved in any examination of the situation” here produced. But the Court ruled that this third person may not rely on these two grounds of jurisdiction, a very controversial answer, taking into account that ubi lex non distinguit nec nos distinguire debemus. These last two jurisdictional criteria have an undisputed drawback for the spouse who moves away or changes his/her residence when the marriage breaks down. In essence, the 17

See comments by A. Borrás in Revista Juridica de Catalunya and by R. Caro in La Ley Unión Europea, cit. en Bibliography.

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spouse who remains in the last common place of habitual residence prior to the marriage breakdown can start proceedings immediately, whereas the other spouse has to wait six months or one year, depending on the case. If, by this, a connection with the forum state is intended to be shown, then one cannot overlook the advantages of going to court in one’s own State and the consequences that this carries in relation to the existence of two possible proceedings, and in particular of lis pendens cases and dependent actions (see Art. 19) and matters linked to the enforcement of decisions. If the Member States are disposed to do so, it would be better to delete these two criteria, as proposed by the GEDIP. VI. Jurisdiction on the grounds of nationality 12 Conceived as an alternative criterion to the jurisdiction of the courts of the place of habitual

residence, sub-paragraph (b) of paragraph 1, Art. 3 sets out the possibility that the courts of the spouses’ joint nationality (or in the case of the United Kingdom and Ireland their “domicile”) may also have jurisdiction.18 This possibility was subject to lengthy debate given that nationality is a widely rejected criterion of jurisdiction in the scope of the European Union (Art. 18 TFEU). However, there was not, in fact, any real drawback to using this criterion providing that it was not applied on discriminatory grounds. It is important to underline that this does not allow for the possibility of filing for proceedings in the courts of a State where only one of the spouses has his/her nationality, as this would be pure forum actoris, and on many occasions this may not yield a real connection with the specific case. This matter has been debated by the doctrine given that, for example, if a German woman wishes to get a divorce from her German husband with whom she has always resided in Italy, she can always approach the German courts, whereas she cannot do so if she married an Austrian, given that she would need to establish a minimum length of residence in Germany of six months.19 These are the reasons why these criteria disappear in the proposal of the GEDIP. 13 One matter which is not dealt with in this provision is that which occurs when both spouses

have dual nationality. This scenario was brought up recently in the Hadadi Case, which was settled by the Judgment of the Court of Justice on 16 July 2009.20 Mr Hadadi and Mrs Mesko, both of Hungarian nationality, were married in Hungary in 1979. They moved to France in 1980, where they still resided at the time of judgment. In 1985 they acquired French nationality without losing their Hungarian nationality. On 23 February 2002, Mr Hadadi filed for divorce before the court of Pest, which pronounced the divorce on 4 May 2004; just four days after Hungary joined the European Union. In the meantime Mrs Mesko had filed for a 18

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Whereas the nationality criterion is widely known among the Member States, the concept of “domicile”, which is specific to the United Kingdom and Ireland in the scope of family law, prompted a series of clarifications in the Borrás Report para. 34, drawing in large part from a detailed clarification document issued by the United Kingdom. In any event, the concept of “domicile” in the Brussels II Regulation cannot be interpreted in the same terms as the Brussels I Regulation. Hausmann, EuLF 2000/01, 345, 352; Bonomi, Riv.dir.int. 2001, 298, 318; Hau, FamRZ 2000, p. 1355. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, wife of Hadadi (Hadady) (Case C-168/08) (2009) ECR I-6871.Comments by Alvarez González in La Ley, 20 December 2009, and Noticias de la Unión Europea, 2011, p. 8–9; Briere, in Revue critique de Droit international privé, p. 184; Basedow, in Revue critique de Droit international privé, 2010, p. 427; Gaudemet-Tallon/Lagarde, Histoires de famille du citoyen européen, in: Liber Amicorum Alegria Borras, Madrid, 2013, p. 482.

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fault-based divorce on 19 February 2003 before the Tribunal de grande instance de Meaux in France, which declared the divorce suit inadmissible by a decree of 8 November 2005. Mrs Mesko lodged an appeal in the Cour d’Appel de Paris, which agreed to admit the divorce suit because, in the Court’s view, a divorce decision issued by the Court of Pest could not be recognised in France given the French Law on the matter of dual nationality. Mr Hadadi lodged an appeal for cassation which reproached the Cour d’appel for failing to examine whether or not the jurisdiction of the Hungarian courts could be founded on the Hungarian nationality of both of the spouses. The first issue is a problem of transitional law, given that the Brussels IIbis Regulation was 14 only applicable from 1 March 2005 onwards. However, in accordance with Art. 64, its Chapter III rules governing the recognition and enforcement of judgments are applied if jurisdiction was founded on rules which accorded with those laid out in Chapter II of said Regulation, or Chapter II of the Brussels II Regulation which came into force in Hungary on 1 May 2004. Although the Court of Pest did not mention the rules used for its grounds of jurisdiction, what is far-reaching is that the case described in the Regulation applies, as both spouses have Hungarian nationality. The second and most relevant issue is that which refers to the use of nationality on the part of 15 one of the spouses to approach the Hungarian courts, when there is also French nationality, which coincides with the habitual residence over a long period of time. The peculiarity of this case lies in the fact that the issue arose when recognition of the Hungarian decision was requested in France. Just as A-G Kokott explained in her conclusions, Mrs Mesko’s opposition was not so much to the jurisdiction, but to the material rules which were applied, given that it would have been far more beneficial to petition for fault-based divorce in France.21 This issue may be addressed in two parts. First, if both spouses have the nationality of the Member State whose court is competent to oversee the proceedings, and joint nationality of another Member State, then preference must be given to the nationality of the Member State of the court seized, which in this case was the French nationality. As the ECJ rightly stated,22 Art. 3 (1) Brussels IIbis Regulation does not make any express reference to the law of the Member States for the purposes of determining the exact scope of the nationality criterion.23 In this case, it ought to be pointed out that in the Report Borrás on the 1998 Convention, which is the antecedent of the current text, it had already been noted24 that the Convention established nothing on the consequences of dual nationality, and that in this event the courts of each State should apply their domestic rules, but that they should do so “within the framework of general Community rules on the matter”. This is an important point which the Advocate-General failed to mention in her conclusions,25 and which is crucial for understanding the outcome reached by the Court, given that jurisprudence of the kind relating to 21

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Obviously, this question would not arise today, as both the Hungarian courts and the French courts would apply the same law, according to the Rome III Regulation, as both countries take part in the enhanced cooperation. Paragraph 39. Something which arose in the first comments made on the Brussels I Regulation in the words of Sturlese, Les nouvelles règles du droit international privé Européen du divorce. Règlement (CE) nº 1347/2000, JCP nº 5, 31 January2001, p. 243. Borrás Report para. 33, in fine. Paragraphs 36 and 37.

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the Miccheletti26 or García Avello27 cases could not lead to any other outcome, and that the Regulation “precludes the court of the Member State addressed from regarding spouses who each hold the nationality both of that State and of the Member State of origin as nationals only of the Member State addressed”. 16 Second is the issue of whether or not the courts should consider solely the Member State

nationality with which the spouses maintain the closest link, or the “most effective” nationality. On this issue, Mrs Mesko argued that a comparison or examination of the equivalency of the two nationalities might unleash a “rush to the courts”. Notwithstanding this argument, the opposite position prevailed. This was a logical conclusion to reach, as the courts of the nationality held by the spouses have jurisdiction, and the spouses may choose freely the courts of any of the Member States whose nationality they commonly hold and with which they wish to lodge proceedings without being required to prove any other points of connection with this State, as the Regulation says nothing to this effect.

17 The GEDIP has adopted a position on the solution of double nationality in the instruments

of the European Union dealing with jurisdiction. Art. 7 of the text says that ‘Lorsqu’un citoyen européen possède la nationalité de plusieurs États membres, ces nationalités sont placées sur un pied d’égalité pour déterminer la compétence des juridictions des États membres’ and art. 8 adds that ‘Lorsqu’un citoyen européen possède également la nationalité d’un ou de plusieurs États tiers, seule sa citoyenneté européenne est retenue pour déterminer la compétence des juridictions d’un État membre’. Perhaps it would be possible to introduce a rule to that end in the text of Brussels II a. This ground of jurisdiction seems strong as it is also one of the possible connections for determining the applicable law. Article 4: Counterclaim The court in which proceedings are pending on the basis of Article 3 shall also have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of this Regulation.

I. Preliminary remarks 1 International and community instruments, in particular, used to introduce, and still provide

for, a rule relating to counterclaims by giving the solution of attributing jurisdiction to the court who first heard the initial proceedings for the purposes of hearing the counterclaim. II. Legislative history 2 The rule which appears in Art. 4 derives, without amendment, from Art. 5 Brussels II

Convention and can also be found in Regulation 1347/2000. No modification is proposed in the 2016 proposal of the Commission nor in the GEDIP text.

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Micheletti and others v. Delegación del Gobierno Cantabria (Case C-369/90), (1992) ECR I-4239. García Avello (Case C-148/02), (2003) ECR I-11613.

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III. Scope of application The solution adopted for the counterclaim is the classic solution, insofar as the court having 3 jurisdiction to hear a claim or proceeding in accordance with any of the criteria included in Art. 3 shall also have jurisdiction to hear the counterclaim. However, this rule establishes a clear limit: the counterclaim must be included within the scope of application of the Regulation. This clarification is particularly pertinent if one considers that, on the one hand, the Regulation’s scope of application, as stated in Recital 8, it limited to “the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures.” But on the other hand, one must also consider how often such cases arise in relation to matrimonial proceedings. The rule follows the limitation established in Art. 1 (a). As these matters are outside the Regulation’s scope of application, then the jurisdiction rules relevant to each matter shall be applied. IV. Art. 4 within the jurisdiction system of the Regulation This provision relating to counterclaims should be analysed in conjunction with the provi- 4 sion relating to lis pendens Arts. 16–19 given that the situations referred to in each provision are different, even though in practice they give rise to identical outcomes in many cases. Notwithstanding this, we are dealing with different rules. Whereas Art. 4 is a jurisdiction rule, the rule contained in Art. 19 (1) is a rule for the application of jurisdiction rules in the case when each spouse has lodged proceedings in different Member States. The difficulty lies in distinguishing what constitutes a real counterclaim from allegations made in defence, given that it cannot be limited to a counterclaim based merely on the dismissal of the suit filed by the initial plaintiff. In a modification of Art. 3 of Regulation 2201/2003 in which the choice of court agreement as to the determination of the jurisdiction of the courts was included, it would give rise to the modification of art. 4. As stated in the 2006 proposal of the Commission, a reference has to be added to art. 4 including the possibility of a choice of court Article 5: Conversion of legal separation into divorce Without prejudice to Article 3, a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides.

I. Preliminary remarks The practical operation of the Regulation asks for some rules that allow the correct applica- 1 tion of the rules of jurisdiction. The first one is Art. 5, on the conversion of legal separation into divorce. This rule has to be regarded jointly with Art. 3.

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II. Legislative history 2 As all the rules in this Regulation related to marriage breakdown, no changes are included in

this provision in respect of Regulation 1347/2000 or in relation to the Convention of 1998.1 No modification is proposed in the 2016 Proposal of the Commission or by GEDIP. III. Scope of application 3 The scope of application of this rule is very limited, applying only to cases of conversion of

legal separation into divorce, but without excluding the possibility of the parties seeking a divorce in the courts that have jurisdiction according to Art. 3.2 What this means is that, in these cases, the ground of jurisdiction in Art. 5 is effectively an alternative ground to those included in Art. 3. The question was also raised as to whether there were other situations in which applications might arise to supplement or update a judgment in matrimonial proceedings. The response was negative, meaning that the rule only applies to the conversion of legal separation into divorce. IV. Art. 5 within the jurisdiction system of the Regulation 4 During the preparation of the 1998 Convention, this rule had been the object of long

discussions as the Member States’ domestic laws are very different in this regard. For some Member States, separation is an obligatory step prior to divorce and, once separation is decided upon, a sometimes lengthy period of time must elapse before it is possible to apply for divorce. For other Member States, the legal concept of separation does not exist. This is clearly one of the problems related to the fact that the rules on jurisdiction and recognition in matrimonial matters have not been preceded by a certain degree of harmonization of the domestic laws. 5 According to this provision, divorce can be obtained before the courts of the State where the

separation has been obtained. The starting point of this rule is the fact that separation has been obtained in courts which, at the time of separation, had jurisdiction under Art. 3. But it is possible to imagine that, between the moment of separation and the moment of divorce, circumstances might have changed and that no link with the State in which the separation was obtained still exists. If, for example, a French and a German couple residing in Ireland obtained separation there, but then returned to their countries of origin afterwards without maintaining any links with Ireland, according to Art. 3, the Irish courts would continue to have jurisdiction for the conversion of the separation into divorce. 6 The possibility of conversion does not depend3 on the Regulation, but on the domestic law of

the State concerned. If the State in question does not allow for the possibility of conversion, instead requiring a separate procedure for divorce, then this Article cannot be applied.

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This is the reason why in the Guide pratique pour l’application du Règlement (CE) n° 2201/2003 du Conseil, prepared by the Commission, a subsequent reference is made to the comments and doctrine relating to Regulation 1347/2000, as well as to the Borrás Report to the 1998 Convention. See supra comments to Art. 3. Borrás Report para. 43.

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In a modification of Art. 3 of Regulation 2201/2003 in which the choice of court agreement as to the determination of the jurisdiction of the courts was included, it would give rise to the modification of Art. 5. As stated in the 2006 proposal of the Commission, a reference has to be added to Art. 5 including the possibility of a choice of court. Article 6: Exclusive nature of jurisdiction under Articles 3, 4 and 5 A spouse who: (a) is habitually resident in the territory of a Member State; or (b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ in the territory of one of the latter Member States, may be sued in another Member State only in accordance with Articles 3, 4 and 5.

Bibliography Ancel/Muir Watt, La désunion européenne: le Règlement dit “Bruxelles II”, Revue critique de Droit international privé 2001, 3 Beaumont/Moir, Brussels Convention II: A new Private International Law instrument in family matters for the European Union or the European Community?, European Law Review 1995, 268 Borrás, Competencias “exclusivas” y competencias “residuales”: De “Bruselas II” a “Roma III”, Essays in honour of Konstantinos D. Kerameus (Sakkolulas Publishers/Etablissements Emile Bruylant), 2009, tomo I, p. 165–181 Borrás, “De Bruselas II” a “Bruselas IIbis” … oa “Bruselas II plus” Soberanía del Estado y Derecho internacional, Homenaje al Profesor Juan Antonio Carrillo Salcedo (Servicio de publicaciones de las Universidades de Sevilla, Córdoba y Málaga) (2005), tomo I, p. 239–257 Borrás, Commentary to Brussels II and Brussels IIbis Regulations, Civil Law. European Judicial Cooperation, Brussels, General Secretariat of the Council (2005) p. 54–77 (also in other languages) Borrás, Le droit international privé communautaire: réalités, problèmes et perspectives d’avenir, Recueil des Cours de l’Académie de Droit international de La Haye, tomo 317 (2005), p. 313–536 Borrás, “Exclusive” and “Residual” Grounds of Jurisdiction on Divorce in the Brussels IIbis Regulation, IPRax 2008, 3, p. 233–235 Borrás, “What about matrimonial matters?” Workshop on “Recasting the Brussels IIa Regulation”,

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organized by the European Parliament in Brussels, on 8 November 2016, accessible at http://www.europ arl.europa.eu/news/en/news-room/20161026IPR49 119/committee-on-legal-affairs-meeting-08112016(pm) Calvo Caravaca/Carrascosa, Derecho de familia internacional (2003), p. 150 de Vareilles-Sommières, La libre circulation des jugements rendus en matière matrimoniale en Europe. Convention de Bruxelles II du 28 mai 1998 et proposition du Règlement du Conseil, Gaz.Pal., Nº 21 17–18 décembre 1999 Gaudemet/Tallon, Le règlement nº 1347/2000 du Conseil du 29 mai 2000: Compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs, Journal du Droit international 2001, 2, 381 Jantera/Jareborg, Marriage dissolution in an integrated Europe, Yb.IL 1999, 1 Nuyts, Study on residual jurisdiction (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their Courts in Civil and Commercial matters pursuant to the Brussels I and II Regulations), General Report (final version dated 3 September 2007), in particular p. 92 et seq. Sánchez, Carácter exclusivo de los foros del Reglamento 1347/2000, La oscura redacción de sus artículos 7 y 8, in: Calvo Caravaca/Castellanos (dir.), El Derecho de familia ante el siglo XXI: aspectos internacionales, 2003, p. 741–774

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Article 6 Sánchez, Procesos civiles de divorcio en la UE: El nuevo Reglamento comunitario 1347/2000, repercusión en nuestro actual sistema, in: Calvo/Iriarte (eds.), Globalización y familia (2001) Sturlèse, Les nouvelles règles de Droit international privé du divorce. Règlement (CE) nº 1347/2000 du Conseil, Semaine juridique – Juris-classeur périodique 2001, I. p. 292, nº 35

Brussels IIbis Regulation Pocar, Quelques remarques sur la modification du règlement communautaire nº 2201/2003 en ce qui concerne la compétence et la loi applicable au divorce, Mélanges en l’honneur de Mariel Revillard, Liber amicorum (2007) p. 245–252.

I. Preliminary remarks 1 During the time which has elapsed since the successive adoption of the 1998 Convention,

Regulation 1347/2000 and the current Brussels IIbis Regulation, there is no shadow of a doubt that the provisions which have given rise to the greatest number of comments are those contained in Arts. 6 and 7 (in previous texts these were 7 and 8). Art. 6 deals with the exclusive nature of jurisdiction under Arts. 3, 4 and 5, which carries a different meaning from that given to the term “exclusivity” in the Brussels Convention of 1968 or in Brussels I Regulation.1 In the current text the meaning of the term “exclusive forum” refers to a limited or restricted list of forums. II. Legislative history 2 This provision has not been subject to any modifications since the 1998 Convention and has

found its way into the text of both Regulation 1347/2000 and Brussels IIbis Regulation. However, it is worth highlighting that, in relation to previous texts, jurisdiction on matrimonial matters was also determined in order to attract jurisdiction on parental responsibility for children. In the current text, in which such matters are separate, the rule on the exclusive nature of jurisdiction appears only in relation to jurisdiction over matrimonial matters, and not in relation to parental responsibility. 3 It must be stated in this regard that the exclusivity rule disappears in the 2006 proposal that

had as a result the “Roma III” Regulation which is mentioned in relation to Art. 3.2 In the Explanatory Memorandum which accompanies that proposal, it states that Art. 6 may cause confusion and that it is superfluous since Arts. 3, 4 and 5 describe the circumstances in which the courts of a Member State have jurisdiction according to the Regulation. Although this author agrees with the removal of the Art., it does seem, however, inappropriate to say that the aforementioned Arts. describe in which circumstances a court “has exclusive competence”, as has been suggested. The term “exclusive” does not have the same sense here as in Brussels I Regulation. All that is certain is that said Arts. ought to be examined in order to ascertain whether a court of a Member State has jurisdiction as derived from the Regulation. If there is no jurisdiction, then one should be referred straight on to Art. 7 regarding residual jurisdiction. As well as in the 2016 Commission proposal as in the GEDIP draft this Article is deleted.

1 2

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Arts. 16 and 22, respectively. See references to the document of the Commission in Art. 3.

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III. The limited nature of jurisdiction rules in matrimonial matters The essential characteristics of the jurisdiction rules provided for in this Convention have 4 been examined in connection with Article 3; that is to say, only the criteria listed in Articles 3 to 5 may be used as alternatives and without any order of precedence. However, this Article is intended to emphasise the exclusive nature of the grounds contained in these Articles for determining the jurisdiction of a State’s authorities. Art. 6 must be scrutinised in relation to Art. 7. The effect of these provisions and their 5 relationship has given rise to a significant scholarly debate over the rule and the interpretation given in the explanatory report to the 1998 Convention,3 which has caused numerous practical problems. The point must be made that the Explanatory Report was approved by the Working Group which had prepared the 1998 Convention, and for this reason the ideas, differences and discussions of the Member States are synthesised. Thus, the examples provided therein are valid.4 So, where the grounds under Article 3 are either the spouse’s habitual residence, or his or her nationality or ‘domicile’, an application may be made to a court only in accordance with the rules laid down in the earlier Articles. That limitation on the rules of jurisdiction opens the way to the residual jurisdiction provided for in Article 7. On this point, the judgment of the European Court of Justice of 29 November 20075 in the 6 Sundelind Case is relevant. It is one of the first two cases in which the European Court of Justice (ECJ) interpreted Brussels IIbis Regulation.6 The importance lies in the fact that the Court has to rule on jurisdiction in family law, a matter which the Court is not used to 3

4 5

6

Among the numerous comments see Ancel/Muir Watt, La désunion européenne: le Règlement dit “Bruxelles II”, Revue critique de Droit international privé 2001, 3; Arenas, Crisis matrimoniales internacionales. Nulidad matrimonial, separación y divorcio en el Nuevo Derecho internacional privado español, (2004) p. 148; Beaumont/Moir, Brussels Convention II: A new Private International Law instrument in family matters for the European Union or the European Community?, European Law Review 1995, p. 268; Calvo Caravaca/Carrascosa, Derecho de familia internacional (2003), p. 150; Gaudemet/ Tallon, Le règlement nº 1347/2000 du Conseil du 29 mai 2000: compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs, Journal de Droit international 2001; Jantera-Jareborg, Marriage dissolution in an integrated Europe, Yearbook of Private International Law 1999, 1; Sturlèse, Les nouvelles règles de Droit international privé du divorce. Règlement (CE) nº 1347/2000 du Conseil, Semaine juridique – Juris-classeur périodique 2001, p. 292 nº35; Sánchez, Carácter exclusivo de los foros del Reglamento 1347/2000. La oscura redacción de sus artículos 7 y 8, El Derecho de familia ante el siglo XXI: aspectos internacionales (Calvo Caravaca/Castellanos, dir), 2003, p. 741–774; de Vareilles-Sommières, La libre circulation des jugements rendus en matière matrimoniale en Europe. Convention de Bruxelles II du 28 mai 1998 et proposition du Règlement du Conseil, Gaz. Pal., Nº 21 17–18 décembre 1999. Paragraph 45. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lozazo (Case C-68/07) (2007) ECR I-10403. Comments by Borrás, “Exclusive” and “Residual” Grounds of Jurisdiction on Divorce in the Brussels IIbis Regulation, IPRax 2008, 3, p. 233–235; Borrás, Competencias “exclusivas” y competencias “residuales”: De “Bruselas II” a “Roma III”, Essays in honour of Konstantinos D. Kerameus, (Ant. N. Sakkolulas Publishers/Etablissements Emile Bruylant), 2009, tomo I, p. 165–181. The other was the Judgment of 27 November 2007, C (Case C-435/06) (2007) ECR I-10141. Commentary by González Beilfuss, Revista Jurídica de Catalunya, 2008, 2, p. 624.

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dealing with. And this consideration is especially pertinent taking into account that in this case, there is no Opinion of the any Advocate-General. In fact, the possibility exists for the Court to give a judgment without a submission from the Advocate General if, after hearing from the Advocate General, the Court “considers that the case raises no new point of law”, according to Art. 20, last paragraph, of the Statute of the Court of Justice. Although it seems that about 40 % of the Judgments of the ECJ have been given over the last few years without the Opinion of the Advocate-General, this decision is surprising in this case. Firstly, the two judgments of November 2007 were the first on Brussels IIbis Regulation and, in this situation, it is difficult to accept that this case “raises no new point of law”.7 Secondly, as noted above, this case relates to the more widely-debated provisions Brussels IIbis Regulation, namely Art. 6 on the “exclusivity” of the grounds of jurisdiction for divorce in Arts. 3, 4 and 5, and Art. 7 on the use of national rules on jurisdiction. Thirdly, and no less important, the (normally) high quality of the Opinion of the Advocate-General is well known and it is followed to a large extent by the Court. 7 The facts in the current case are as follows. Mrs Sundelind López, a Swedish national, was

married to Mr. López Lizano, a Cuban national. Their last common habitual residence was France, where Mrs. Sundelind was still residing at the time of judgment, while the husband was resident in Cuba. Mrs. Sundelind filed for divorce in the District Court of Stockholm, on the grounds of Swedish legislation, which establishes that matrimonial cases may be heard by the Swedish courts if the plaintiff is a Swedish citizen and is resident in Sweden or has been resident there at any moment after reaching the age of 18. Applying Art. 17 of the Regulation, the Court dismissed the petition, on the ground that according to Art. 3, paragraph 1, sub-paragraph (a), second indent, French Courts have jurisdiction and, consequently, Art. 7 cannot be applied.8 The Court of Appeal confirmed this decision and Mrs Sundelind appealed against that judgment to the Supreme Court, submitting that Arts. 3 to 5 of the Regulation do not apply when the respondent has no habitual residence in or is not a national of a Member State and, in consequence, that Art. 7 of the Regulation allows Swedish courts to apply national law. The Swedish Supreme Court decided to stay the proceedings and to refer the question to the Court of Justice for a preliminary ruling, to decide if, in a case concerning divorce where the respondent is neither resident in a Member State nor a citizen of a Member State, the Courts in a Member State that do not have jurisdiction under Art. 3 Brussels IIbis Regulation may hear the case, even though the Courts in another Member State may have jurisdiction by application of one of the rules set out in Article 3. The decision of the Court is clear: Arts. 6 and 7 Brussels IIbis Regulation “are to be interpreted as meaning that where in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Art. 3 of that Regulation”. This is the way in which the European Court of Justice answered the question of “exclusivity” in Art. 6 and “residuality” in Art. 7. 8 The arguments are very simple: to apply Art. 7 of the Regulation, no Member State court

must have jurisdiction. If a Member State Court is seized under national law and the Courts in another Member State have jurisdiction, it has to declare of its own motion that it has no jurisdiction, according to Art. 17. What Art. 6 prevents is a spouse who has his or her habitual 7 8

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In case C-435/06, there is the Opinion of Advocate General J. Kokott, of 20 September 2007. See Art. 7 para. 1.

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residence in a Member State, or is a national of a Member State, from being sued in the courts of other Member States. It does not apply if that spouse has his or her habitual residence in, or the nationality of, a third State. As is discussed below, Art. 6 is not a rule on the personal scope of the Regulation, but rather determines the compulsory application of Arts. 3, 4 and 5. The residence or the nationality of the respondent is not relevant if one of the grounds laid down in these Arts. attributes jurisdiction to the courts of a Member State. The reference at paragraph 23 of the judgment to Art. 7(2) of the Regulation is, therefore, superfluous. The Court notes that Recital 12 of Regulation 1347/2000 states that the grounds of jurisdic- 9 tion accepted in the Regulation “are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction”, following Recital 8, according to which the “Regulation should also apply to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in the Regulation”. Although it is not so clear in the judgment, it means that the “real link” or the “sufficiently close link” has not to be examined on a case-by-case basis, but on the existence (or absence) of one of the links established in Arts. 3, 4 and 5. In this case, it was clear that French courts had jurisdiction according to Art. 3 and, consequently, Ms Sundelind could not use the Swedish domestic grounds of jurisdiction. Without prejudice to the arguments used in the decision, the term “exclusive” in Art. 6 of the 10 Regulation has not been well chosen. At a cursory glance, is seems to invite a misleading comparison with Art. 22 Brussels I Regulation,9 which confers “exclusive jurisdiction” in certain cases on the courts of a particular State “regardless of domicile”. But it has to be considered that in Brussels IIbis Regulation there is no general rule like the one laid down in Art. 2 Brussels I Regulation.10 The question occupied a large part of the discussion which led to the adoption of the text of the Convention of 1998, which is the basis of the Regulation now in force, and has not been altered on this point.11 The peculiarity of the matter covered by “Brussels II” did not lend itself to a provision similar to Art. 2 of “Brussels I”, which is the true cornerstone Brussels I Regulation, as it was in the Brussels Convention 1968. As it is stated in the Report,12 “the exclusion of a general forum and the establishment of a concrete list of forums is a logical step since, precisely as a result of marriage breakdown, the situation constantly changes at short notice”, as was the case in the judgment discussed here. The grounds adopted are “objective, alternative and exclusive”.13 It means that only the grounds listed in Arts. 3, 4 and 5 may be used, as alternatives and without any order of precedence. “Article 6 is only intended to emphasise the exclusive nature of the grounds contained in earlier Arts. for determining the jurisdiction of a State’s authorities”.14 In other words, the list of grounds of jurisdiction in Arts. 3 to 5 is “exhaustive”. 9 10 11

12 13 14

Article 16 of the Brussels Convention 1968 on the same matter. See also Art. 2 of the Brussels Convention 1968. This is why, on this matter, it is possible to continue using the explanatory Report Borrás. On the evolution from the 1998 Convention, among others, Borrás, Homenaje al Profesor Juan Antonio Carrillo Salcedo I (2005), p. 239; Borrás, Commentary to Brussels II and Brussels IIbis Regulations, Civil Law. European Judicial Cooperation, Brussels, General Secretariat of the Council, 2005, pp. 54–77 (also in other languages); Borrás, Rec. des Cours 317 (2005), 313–536. Borrás Report para. 28. Borrás Report para. 28. Borrás Report para. 44.

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11 In the 2006 Proposal of the Commission on “Rome III”15 Art. 6 was deleted. The reasons

given by the Commission were that this provision may cause confusion and is superfluous, “since Arts. 3, 4 and 5 describe in which circumstances a court has exclusive competence where a spouse is habitually resident in the territory of a Member State or is a national of a Member State, or in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter States”. In fact, the deletion of Article 6 would not have changed the “exclusivity” of the grounds of jurisdiction in Arts. 3, 4 and 5. The reasoning of the Commission corresponded to the sense given to this provision in the 1998 Convention, and now by the decision of the Court. In the current case, the spouses were last habitually resident in France and the wife still resides there (Art. 3, paragraph 1, a), second indent) and she has resided in France for at least a year immediately before her divorce petition was introduced (fifth indent). 12 The exclusive nature of the grounds included in the Regulation has to be read jointly with

Art. 7, which deals with “residual jurisdiction”, establishing that “where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State”. As it is stated in the Report,16 “such jurisdiction is termed “residual” in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Convention”. In this case, it was not possible to apply the Swedish rules on jurisdiction as the Courts in France had jurisdiction according to Art. 3.

13 To confirm and to clarify the rule in Art. 7, in the abovementioned 2006 Proposal of the

Commission the wording of this rule was substituted in favour of the following text: “Where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have a common nationality of a Member State, the courts of a Member State shall have jurisdiction […].”17 The reason given was18 that “the residual rule on jurisdiction should be revised to enhance predictability and access to courts for spouses of different nationalities living in a third State”. And this is really the problem:19 when one of the spouses has the nationality of a Member State and both spouses take up habitual residence in a third country, only in some Member States are there domestic rules to 15

16 17

18 19

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Proposal for a Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters, document COM (2006) 399 final, of 17 July 2006. Discussions which took place in the Committee on Civil Law matters of the Council led to the Regulation No. 1259/2010 of 20 December 2010 which provides for enhanced cooperation in the area of the law applicable to divorce and legal separation between 14 Member States but leaves the jurisdiction rules of Brussels IIbis unaffected. Borrás Report para. 47. This commentary is not the right place to discuss the substitution of the words “residual jurisdiction” for “subsidiary jurisdiction”, or to discuss the fact that jurisdiction for “extra-Community disputes” is no longer determined by the laws of the Member States, but by Community rules, thereby breaking down what until now had been a play-off between Community rules and the Member States’ domestic rules to determine international jurisdiction. Cf. Pocar, Mélanges en l’honneur de Mariel Revillard (2007), p. 245. Recital (9) Proposal. On this problem, Nuyts, Study on residual jurisdiction (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their Courts in Civil and Commercial matters pursuant to the Brussels I and II Regulations), General Report (final version dated 3 September 2007), in particular pp. 92 et seq.

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determine the jurisdiction of their courts. In this case, Ms Sundelind is a national of one Member State residing in another. In this situation, it is not unusual to find that both the 2016 Commission proposal and the GEDIP draft have deleted this Article. Article 7: Residual jurisdiction 1. Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State. 2. As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his ‘domicile’ within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.

Bibliography Audit/Bermann, The application of Private international norms to “third countries”: The jurisdiction and judgments example, in: Nuyts/Watté (eds.), International civil litigation in Europe and relations with third States (2005), p. 55–82 Baratta, Separazione e divorzio nel DIPr italiano, Cap. XXII del vol. II del Trattato di Dirito di famiglia (a cura di Ferrando/Fortino/Ruscello) (2002), p. 1590 Borrás, The frontiers and the institutional constitutional question, in: Nuyts/Watté (eds.), International civil litigation in Europe and relations with third States (2005), p. 27–54 Borrás, Diritto internazionale privato comunitario e rapporti con Stati terzi, Diritto internazionale privato e Diritto comunitario, a cura di Picone, (2004), p. 449–483 Borrás, Le droit international privé communautaire: réalités, problèmes et perspectives d’avenir, Recueil des Cours, tome 317 (2005), p. 467 Borrás, Competence of the Community to conclude the revised Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Opinion C-1/03 of 7 February 2006: Comments and immediate consequences, YbPIL, Volume 8 (2006), p. 37–52 and also in Revista Jurídica de Catalunya 2006, 3 p. 879 and in Revista General de Derecho Europeo, nº 10, May

Alegría Borrás

2006 [this electronic magazine to be found at http:// www.iustel.com/revistas] Borrás, Un nuevo marco jurídico para la conclusión de convenios de Derecho internacional privado entre Estados miembros y terceros Estados en materias “comunitarizadas”, Noticias de la Unión Europea, nº 315, abril de 2011, p. 119–126 Borrás, “What about matrimonial matters?” Workshop on “Recasting the Brussels IIa Regulation”, organized by the European Parliament in Brussels, on 8 November 2016, accesible at http://www.europa rl.europa.eu/news/en/news-room/20161026IPR491 19/committee-on-legal-affairs-meeting-08112016-( pm) Carlier/Francq/Van Boxtael, Le règlement de Bruxelles II. Compétence, reconnaissance et exécution en matière matrimoniale et en matière de responsabilité parentale, J.trib.dr.eur, April 2001, p. 73 Carrascosa, Cuestiones polémicas en el Reglamento 1347/2000, in: Calvo/Iriarte (eds.), Mundialización y familia (2001), p. 213 Drouet, L’avènement de “Bruxelles II”, Mémoire de DEA, Université de Nantes (1999), p. 118–119 Hess, Les compétences externes de la Communauté européenne dans le cadre de l’Art. 65 CE, Les conflits de lois et le système juridique communautaire, (sous la direction de: Fuchs/Muir Watt/Pataut) (2004), p. 81–100

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Wilderspin/Rouchaud/Joët, La compétence externe de la Communauté européenne en droit international privé, Revue Critique de Droit International Privé 2004, n. 1, p. 1–48.

I. Preliminary remarks 1 This Article corresponds to the rules of exorbitant jurisdiction referred to in Articles 3 and 4

of the 1968 Brussels Convention and Brussels I Regulation (Arts. 5–6 in Brussels Ibis Regulation). There are, however, differences between these two texts and the text of the Brussels II Regulation. The nature of the jurisdictional criteria laid down in Articles 3 to 5 renders unnecessary a provision such as that of Article 3 of the 1968 Brussels Convention. Therefore, they were only included in the Brussels II Convention to signal that some jurisdictional rules of this nature exist in the domestic law of some Member States.1 II. Legislative history 2 This provision has passed from the 1998 Brussels II Convention and Regulation 1347/2000

to the current Brussels IIbis Regulation without modification. It refers to the distinction between Community disputes and extra-Community disputes. The rule in Art. 7 makes unnecessary a provision, such as that proposed by one State during negotiations, stating that the criteria of the Convention apply only in the case that both spouses have their habitual residence in the territory of the Member States, with domestic law to apply in the remainder of cases. This rule would have been complemented by another in which it would have been stated that the rules of lis pendens and the recognition of judgments would apply in both cases. This proposal was rejected by numerous delegations, when it might well have prevented the problem discussed here.2 III. The application of internal grounds of jurisdiction 3 Following the provision in Article 6 on the exclusive nature of jurisdiction under Articles 3

to 5, Article 7 deals with arrangements existing in the Member States’ domestic legal systems which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-Member State, and none of the jurisdiction criteria of the Convention are met, jurisdiction will be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one whereby the applicant who is a national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, 1

2

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See Borrás Report para. 47. Art. 7 creates in this way a true “privilege of European citizenship”, in the words of Drouet, L’avènement de “Bruxelles II” (1999) pp. 118–119. For Baratta, in: Ferrando/Fortino/ Ruscello (dir.), Trattato di diritto di famiglia, vol. II (2002), p. 1590, Art. 7 may be conceived as a manifestation of “eurochauvinism”, which other American authors such as Juenger, Rev. crit. dr. int. pr. 74 (1985), 50, or von Mehren, Rec. des Cours 1980 II 100, already attribute to the 1968 Brussels Convention. On the debate on the scope of Art. 7 and its relation to the rule of Art. 6, see Carlier and others, “Le règlement, […]”, cit.

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avail himself of the rules of jurisdiction applicable in that State. The prerequisite for applying this provision is that the respondent does not have his habitual residence in a Member State (and does not have his ‘domicile’ within the territory of a Member State) and is not a national of a Member State. Such jurisdiction is termed ‘residual’ in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Regulation. That description was regarded as preferable to ‘extra-Community disputes’. Taking into account the grounds of jurisdiction laid down in Articles 3 to 5 of the Convention, paragraph 1 sets the boundary between grounds of an exclusive nature established by the Convention and the principle of applying internal rules of jurisdiction, thus demonstrating the geographical limits of the Convention. The requirements set out in Article 7 (2) must be examined in the following sense: 4 a) the applicant must be a national of a Member State habitually resident in another Member State. Hence the principle of assimilation between citizens of Member States for the purposes of paragraph 1; b) the respondent must meet two conditions: on the one hand he or she must be habitually resident outside the Member States; on the other hand, he or she must not be a national of a Member State or have his or her ‘domicile’ in a Member State. Both conditions are concurrent, otherwise the situation would be one requiring application of one of the grounds in Article 3. In view of the function that that Article performs, and contrary to Article 4 of the Brussels I 5 Regulation, a list of these types of jurisdiction has not been included in this Article. Some States, like the Netherlands, have no jurisdiction provision in their internal legal system which can be defined as ‘residual’ for the purposes of Article 3 of the Regulation. Such residual jurisdiction does, however, exist in other national systems. Some examples are 6 set out below.3 In Germany, the rules of jurisdiction provided for in sections (1), (3) and (4) of § 606a of the ‘Zivilprozessordnung’ could be described as residual; they provide that German courts have international jurisdiction when (1) one spouse is German or was German when the marriage took place; (2) one spouse is stateless and is habitually resident in Germany; or (3) one spouse is habitually resident in Germany, except where any judgment reached in their case could not be recognised in any of the States to which either spouse belonged. In Finland, under Section 8 of the ‘Laki eräistä kansainvälisluontoisista perheoikeudellisista suhteista’/‘Lag angående vissa familjerättsliga förhållanden av internationell natur’ (International Family Relations Act) revised in 1987, Finnish courts will hear matrimonial cases even where neither spouse is habitually resident in Finland if the courts of the State of habitual residence of either of the spouses do not have jurisdiction or if application to the courts of the State of habitual residence would cause unreasonable difficulties and, furthermore, in the circumstances it would appear to be appropriate to assume jurisdiction (forum conveniens).

3

Taken directly from the Report Borrás, para. 47. They are examples taken solely from the then-Member States of the European Community. Only Spain has been the object of an updating.

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In France, Article 14 of the Civil Code would give French courts jurisdiction if the petitioner had French nationality. In Ireland the courts would have jurisdiction in matters of annulment, (Section 39 of the Family Law Act, 1995) divorce (Section 39 of the Family Law [Divorce] Act, 1996), and legal separation (Section 31 of the Judicial Separation and Family Law Reform Act, 1989), when either of the spouses is domiciled, for the purposes of Article 2(3), in the State on the date of institution of proceedings. In Italy, the rules laid down in Articles 3, 4, 32 and 37 of Law 218 of 31 May 1995 on the reform of the Italian system of private international law are of this nature. In the United Kingdom, a distinction has to be made between divorce, separation and annulment proceedings and custody orders relating to such proceedings. With regard to divorce, annulment and legal separation proceedings, this Article may cover grounds of jurisdiction based on the ‘domicile’ of either party in the United Kingdom at the time the application is made or on habitual residence for a year immediately preceding that date. In the case of divorce and separation proceedings, the Sheriff Courts in Scotland have jurisdiction if one party is either resident in the place for 40 days immediately prior to the submission of the application or has resided there for a period of at least 40 days ending not more than 40 days before that date and has no known residence in Scotland on that date. For custody orders contained in divorce, annulment and legal separation judgments, United Kingdom judicial bodies, including the Sheriff Courts in Scotland, will have jurisdiction, but if a court outside the United Kingdom is conducting relevant proceedings, United Kingdom courts have a wide discretion to decline jurisdiction, provided that those proceedings continue and, in addition, that the proceedings continue before a judicial body that has jurisdiction under its national legislation. In the case of Sweden, the jurisdictional rules of Swedish courts for divorce matters are to be found in the ‘lag om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap’ (Act on certain international legal relations concerning marriage and guardianship) 1904, as amended in 1973. As regards Article 7 of the Convention, Swedish courts have jurisdiction in matters of divorce if both spouses are Swedish citizens, if the petitioner is Swedish and is habitually resident in Sweden or has been so at any time since reaching the age of 184 or if, in other cases, the government gives its consent to the cases being heard in Sweden. The government can give its consent only if one of the spouses is Swedish or the petitioner cannot bring the case before the courts of the State of which he is a national. In Spain, the rules are contained in the “Ley Orgánica del Poder Judicial” (Law on the judicial system of 1985, which has been modified by the “Ley Orgánica” 7/2015, of 21 July). The new Art. 22 quater wants to include a rule for this function, as it is shown by the inclusion at the beginning that the application of the rule is conditioned to the fact “that no other foreign court has jurisdiction”, following the terminology of art. 7 of the Regulation. It is not correct, as the application of the rule would become absurd and against the Constitution.5 As to the contents of the rule, it is useless for divorce, separation and nullity as it simply repeats the grounds of jurisdiction of the Regulation, in such a way that the rules 4

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See the Sundelind Case, as described in the comment to Art. 6.

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serve only to determine jurisdiction in questions related to the personal and estate relations between spouses. On 17 July 2006 the Commission proposed a Regulation amending Council Brussels IIbis 7 Regulation as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters,6 but as the necessary unanimity was not reached, Regulation 1259/2010 was adopted, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, but without modifying the rules on jurisdiction.7 Before an examination of the proposal for the modification of Art. 7 of the Brussels IIbis 8 Regulation, it is essential to contextualise the approach to the question beforehand. It deals with external implications of the communitarisation of Private International Law,8 or what is known as the “ERTA effect”9 as a consequence of the first Judgment of the Court of Justice in which this theory was applied, according to which, once the Community has exercised an ad intra competence, then it also acquires an ad extra competence. In the scope of civil justice, we have an example of this in the conclusion of the revised Lugano Convention of 30 October 2007.10 In this case, it was the direct result of Opinion C-1/03, delivered on 7 February 2006 in which the Court, on the grounds of the existence Brussels I Regulation, stated that competence for the conclusion of the revised Lugano Convention “falls entirely in the sphere of the exclusive competence of the European Community”. Without exploring other aspects,11 it is important to highlight that in the case it is stated that the “the proper functioning of the internal market” shall not affect the conclusion of the Convention, but shall solely affect the adoption of the internal act. In this context, there is no doubt that the European Union has competence to conclude 9 multilateral and bilateral agreements, along with the specific provisions relating to the possibility that they might be concluded by the Member States within a system which has been qualified as one of “supervised release”.12 However, progress of European Union rules 5

6 7 8

9 10

11

12

Garcimartín, Derecho internacional privado, 3ª ed, 2016, p. 151. Fernández Rozas-Sánchez Lorenzo, Derecho internacional privado, 9ª ed, 2016, p. 451. Document COM (2006) 399 final, of 17 July 2006. Regulation (EC) No. 1259/2010 of the Council of 20 December 2010, OJ EU 2010 L 343/29. Among the abundant bibliography on this matter, see Audit/Bermann, in: Nuyts/Watté (eds.), International civil litigation in Europe and relations with third States (2005), p. 55; Borrás“ in Nuyts/Watté (eds), International civil litigation in Europe and relations with third States (2005), p. 27; Borrás, in: Picone (a cura di), Diritto internazionale privato e Diritto comunitario (2004), p. 449; Borrás, Rec. des Cours 317 (2005), 467; Wilderspin/Rouchaud/Joët, RCDIP 93 (2004), 1–48. Commission v. Council (Case 22/70) (1971) ECR 975, in particular para. 17. By Decision of the Council of 27th November 2008, the conclusion of the Convention by the European Community was authorized, jointly published with the Convention in OJ EU 2009 L 147. Borrás, REDI, 2007, 851. On this important case, see Borrás, YbPIL 8 (2006), 37; Borrás, RJC 2006, 879; Borrás, Rev. gen. der. europeo, nº 10, May 2006, http://www.iustel.com/revistas/. See also the comments made by Baumé, German L.J. 2006, nº 8, p. 681–692; Brand, 2006 ILSA J. Int. & Comp. L. 297. For broader comments on this matter, see Borrás, Le droit international privé communautaire: réalités, problèmes et perspectives d’avenir Recueil des Cours, Volumen 317 (2005), in particular, p. 467–522. Borrás, Noticias UE 315 (April 2011), 119.

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is not limited to the conclusion of bilateral or multilateral conventions by Member States, but also affects the possibility for Member States to establish autonomous rules on Private International Law. For example, in a situation where internal courts have no jurisdiction according to Regulation Brussels IIbis, European Union competence implies that should Art. 7 of the Regulation be deleted and a subsidiary norm of a community nature introduced for those cases in which there is no jurisdiction under Arts. 3 to 5, then existing internal rules on jurisdiction would no longer apply. We are dealing with a matter which arises in relation to all of the Community instruments, but here we shall narrow our scope down to Brussels IIbis Regulation. Thus, the proposals for other Regulations include residual norms in case there is no jurisdiction in accordance with the normal criteria for jurisdiction.13 10 According to the proposal of the Commission of 2006, where neither of the spouses is

habitually resident in a Member State (and where there is no common nationality of a Member State or a “domicile” in the United Kingdom or Ireland), the courts of a Member State were competent if the spouses had their common previous habitual residence in the territory of that Member State for at least three years, or one of the spouses has the nationality of that Member State (or the “domicile” in the United Kingdom or Ireland). The justification for this novelty was provided in Recital 9 to the Proposal, stating that the rule was revised “to enhance predictability and Access to courts for spouses of different nationalities living in a third State” and, to this end, the Regulation “should set out a harmonised rule on residual jurisdiction to enable couples of different nationalities to seise a court of a Member State with which they have a close connection by virtue of their nationality or their last common habitual residence”. 11 In the Explanatory Memorandum that accompanied the 2006 Proposal it stated that the

objective of the rule is to ensure access to a EU court to spouses that could not accede to them, although they have a close connection with a Member State, due to the different criteria adopted by the national rules. According to the Commission, the proposed new Art. 7 was intended to introduce a “uniform and exhaustive rule” on residual jurisdiction, which replaces the national rules on residual jurisdiction. 12 Art. 7 is now the object of a revision in the 2016 Proposal, taking into account the criticism

on it previous proposals and the real problem:14 when one of the spouses has the nationality (or the ‘domicile’) of a Member State and both spouses have the habitual residence in a third country, because only in some Member States are there internal rules to determine the jurisdiction of its courts. The proposal of the Commission is to introduce a rule to this end, as a forum necessitates for the cases where the respondent is habitually resident in the territory of a Member State or is a national (or, if it is the case, has his domicile) in a Member State.

13

14

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For example, the subsidiary jurisdictions of Art. 6 of the Draft Succession Regulation and perhaps also the inclusion of a forum necessitatis. On this problem, A. Nuyts, Study on residual jurisdiction (Review of the Member States’ Rules concerning the ‘Residual Jurisdiction’ of their Courts in Civil and Commercial matters pursuant to the Brussels I and II Regulations), General Report (final version dated 3 September 2007), in particular pp. 92 et seq.

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Section 2: Parental responsibility Article 8: General jurisdiction 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized. 2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.

Bibliography Ackers/Stalford, A Community for Children? Children, Citizenship and internal migration in the EU (2004) Bauer, Neues internationales Verfahrensrecht im Licht der Kindesentführungsfälle, IPRax 2002, 179 Boele-Woelki/Braat/Curry/Sumner (eds.), European Family law in action, volume III: Parental responsibilities (2005) Borrás, La protección de los hijos comunes con motivo de la crisis matrimonial, Disyuntivas en los pleitos matrimoniales de separación y divorcio, in: Jornadas de la Asociación Española de Abogados de familia (1999), p. 297 Borrás, La falta de unificación del ámbito de aplicación del Derecho internacional privado comunitario, in: Homenaje a la Profesora Victoria Abellán Honrubia, vol. II (2009), p. 853 Corneloup, Les règles de compétence relatives à la responsabilité parentale, in: Fulchiron/Nourissat (éds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005), p. 241

De Boer, What we should not expect from a recast of the Brussels IIbis Regulation, Nederlands International Privaatrecht (2015), 33/1, p. 10 Espinosa Calabuig, La responsabilidad parental y el Nuevo Reglamento de “Bruselas UU bis”: entre el interés del menor y la cooperación judicial interestatal, RDIPP 2003 Kropholler, Der gewöhnliche Aufenthalt des Kindes und das Aufenthaltsbestimmungsrecht, in: FS Erik Jayme (2004), p. 471 Rodríguez Pineau, El nuevo Reglamento comunitario sobre litigios matrimoniales y responsabilidad parental, in: Diario La Ley, 30 January 2004 Schulz, Die Zeichnung des Haager Kinderschutzübereinkommens von 1996 und der Kompromiss zur Brüssel IIa-Verordnung, FamRZ 2003, 1351 Sumampow, Parental responsibility under Brussels II, in: Liber Amicorum K. Siehr (The Hague 2000), p. 729.

I. Preliminary remarks The examination of this provision should be carried out in relation to Art. 1, paragraph 1(b) 1 regarding the ratione materiae scope of the Regulation which includes “the attribution, exercise, delegation, restriction or termination of parental responsibility”. The definition of parental responsibility given in no. 7 of Art. 2, which is non-exhaustive, requires reference to paragraph 2 of art.1 together with the exhaustive list of exclusions in paragraph 3 of Art. 1. As regards the scope of these rules, refer to the commentary to these provisions. II. Legislative history As stated in Recital (3) of the Regulation, “Council Regulation (EC) No. 1347/2000” sets out 2 rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters and

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matters of parental responsibility for the children of both spouses rendered on the occasion of the matrimonial proceedings. The content of this Regulation was substantially taken over from the Brussels II Convention of 28 May 1998. As one of the problems in situations of marriage breakdown is both parents’ access to their children, on 3 July 2000 France presented an initiative for a Council Regulation on the mutual enforcement of judgments on rights of access to children.1 The initiative was very narrow in scope, as it was strictly tied to Regulation 1347/2000, meaning that it was limited to the right of access of matrimonial children and linked to the process of divorce. This is the reason why, in order to ensure equality for all children, a new initiative was taken allowing Brussels IIbis Regulation to cover all decisions on parental responsibility, including measures for the protection of the child, regardless of any link with a matrimonial proceeding (as stated in Recital 5). In any case, it was taken into account that in a large number of cases the problems which arise are linked to matrimonial proceedings, and this is the reason why both questions are included in the same instrument, as stated in Recital 6 “Since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is more appropriate to have a single instrument for matters of divorce and parental responsibility”. One might doubt whether this is indeed the case. The evolution of both matters is proving to be different. Brussels IIbis Regulation has modified the questions relating to parental responsibility as regards Regulation 1347/2000, whereas the “Rome III” proposal is solely concerned with those questions linked to marriage breakdown. In this situation, it appears to be more clear-cut for lawyers and judges to have the two matters made the subject of two different Regulations, which would dispel doubts surrounding those aspects which have been modified, despite the possible link which might exist between one instrument and another being highlighted. III. Scope of application 3 Whilst the scope of application of the Regulation, insofar as marriages crises are concerned,

is very limited, the same is not true of the matter of parental responsibility, the scope of which is very wide in accordance with the definition included in paragraph 7 of Art. 2, subject to the rules of Art. 8 and subsequent Arts. IV. The general rule 4 The general rule on the matter of jurisdiction for parental responsibility is contained in

Art. 8, paragraph 1, which establishes that the courts of the Member State of the habitual residence of the child shall have jurisdiction. Undoubtedly, the choice of this forum owes itself to the consideration that this is the most appropriate forum due to its proximity to the child. As stated in Recital (12) “The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility”. 5 The use of habitual residence for the determination of the competent courts and for the 1

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See Recital (4). The French initiative is reported in OJ EU 2000 C 234.

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determination of applicable law on the matter of child protection is not new. Thus, Art. 8, paragraph 1 is similar to Art. 5 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. This Convention merits special attention, given that it was adopted with the Brussels II Convention (then in preparation in the European Community) very much in mind, and this led to the introduction of a compatibility clause in Art. 52 (2) (now Art. 61 Brussels IIbis Regulation) in order to enable the harmonious application of both texts.2 It is important to point out that, unlike other Conventions which were subsequently adopted by The Hague Conference of Private International Law, The Hague Convention of 1996 does not contain an adhesion clause for the European Union (more generically, for “Regional Economic Integration Organisations”, abbreviated to REIO), and for this reason the Member States had to ratify the Convention themselves and also on behalf of the European Union, taking into account Community competence on this matter. Along these lines, the then Member States, jointly signed the Convention of 1 April 2003 (with the exception of Holland which had already done so) and formulated a statement which was made in Council Decision 2003/93/CE of 19 December 2002. By virtue of this decision the resolutions passed in the Member States, in relation to a matter of the Convention which can also be found in Brussels IIbis Regulation, shall be recognised and enforced in the remaining Member States, in accordance with the rules contained in said Regulation. The situation of the Convention is even more complicated if one takes into account that some of the new Member States had ratified the Convention prior to their entry into the European Union. In an attempt to clarify, harmonise and avoid fragmentation,3 the Council adopted Decision 2008/431/CE, relating to the ratification of the Convention by the Member States in the interest of the European Community4 so that, wherever possible, the Member States could conclude the internal procedures of ratification within a period of two years, which allowed the ratification and adhesion instruments to be simultaneously deposited before 5 June 2010. Not all of the Member States managed this, however. The outcome was that it was accepted that each Member State would do what they could. Including the Member States of the European Union,5 45 States are now party to the Hague Convention of 1996. As is the case in the other international and European instruments, “habitual residence” is 6 not defined, and so the judge has to ascertain its existence in each specific case. In its judgment of 2 April 2009 the European Court of Justice dealt with a problem related to this question in the “A” case.6 The facts are as follows: the children C, D and E settled in Sweden accompanied by their mother, Ms A, and their stepfather, Mr. F. Previously, D and E 2 3

4 5

6

See Report Lagarde para. 170. This risk has been referred to on different occasions and in particular in Borrás, in: Homenaje a la Profesora Victoria Abellán Honrubia, vol. II (2009), p. 853. DO L 151, 11 June 2008. In April 2016, all the Member States of the European Union (including Denmark) have ratified the Convention. On the status of the Convention, see www.hcch.nl. A (Case C-523/07) (2009) ECR I-2805. The case relates to other questions, in particular the definition of “civil matters”, a question which the Court had already referred to in its judgment of 27 November 2007, C (Case C-435/06) (2007) ECR I-10141. On both decisions, see comments by González Beilfuss, RJC 2008, 624–627; González Beilfuss, RJC 2009, 1201. On the definition of “civil matters”, see comments to Art. 1 (1).

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had been taken into care by municipality X in Finland. The reason for their being taken into care was their stepfather’s violence, but that measure was subsequently discontinued. In the summer of 2005, the family left Sweden to spend the holidays in Finland. They stayed in Finnish territory, living in caravans, on various campsites, and the children did not go to school. On October 2005, the family applied to the social services department of Finnish municipality Y for social housing. By the decisions of the Welfare Committee of November 2005 the children were taken into immediate care in Finland and placed with a foster-family on the grounds that they had been abandoned. Ms A and Mr F applied for the decisions relating to the urgent taking-into-care to be quashed, but the Welfare Committee rejected the application. Ms A brought an action before the courts, seeking to have those decisions quashed and requesting that her children be returned to her custody. The courts dismissed the action and upheld the contested decisions. Ms A lodged an appeal against that decision before the Supreme Administrative Court of Finland, alleging that the Finnish authorities lacked competence. In that connection, Ms A stated that the children were Swedish nationals and that their permanent residence had for a long time been in Sweden. Therefore, the case fell within the jurisdiction of the Swedish courts. The Supreme Administrative court decided to stay the proceedings and to refer some questions to the European Court for a preliminary ruling. For the purposes of this commentary, it is worth highlighting the second and fourth questions put to the court. 7 The second question referred to the Court is the following: “How is the concept of habitual

residence in Art. 8 (1) of the Regulation, like the associated Article 13(1), to be interpreted in Community law, bearing in mind in particular the situation in which a child has a permanent residence in one Member State but is staying in another Member State, carrying on a peripatetic life there?”. The answer of the Court is that the concept of “habitual residence” in the Regulation “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay in the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking into account of all the circumstances specific to each individual case”. There are two different arguments: the definition of “habitual residence” and the determination of who is entitled to decide on the existence of the habitual residence. 8 As to the first question concerning the definition of “habitual residence”, Brussels IIbis

Regulation, just like other international and Community instruments, does not include such a definition. The Court7 states that the case law of the Court relating to the concept of habitual residence in other areas of European Union law cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Art. 8, paragraph 1. For this interpretation the Court follows the opinion of A-G Kokott.8 The discussion comes from the interpretation of the Report Borrás,9 where the impossibility of introducing a definition in the Convention of 1998 is explained, and reference is made to the 7 8 9

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A (Case C-523/07) (2009) ECR I-2805 para. 36. Delivered on 29 January 2009, A (Case C-523/07) (2009) ECR I-2808, in particular paras. 33 to 38. Report Borrás para. 32.

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case law of the European Court in other cases.10 It is true that the Report refers to jurisdiction for divorce and, as a consequence, relates to cases involving adults, where it is possible to emphasise the intention of the persons concerned, unlike in relation to children. But it has the disadvantage of isolating the interpretation of Regulation Brussels IIbis from the interpretation of other provisions of Community law, which favours the conceptual incoherence already existing in other cases, as in contracts. Having accepted this interpretation, the Court contradicts itself in its arguments: on the one hand, it is for the national court to establish the place of the children’s habitual residence,11 but, on the other hand, the concept has to be interpreted independently in the light of the context of the provisions and the objective of the Regulation,12 in accordance with the criteria laid out by the court.13 In this manner, no progress is being made in achieving greater unity in European private law, given that it is obvious that there will be diverging decisions, without the European Court of Justice really having fulfilled its unifying role, which is why this decision is somewhat disappointing in relation to such a fundamental concept as habitual residence in this context. The fourth question put to the Court was: “If the court of a Member State has no jurisdiction 9 at all, must it dismiss the case as inadmissible or transfer it to the court of the other Member State?”. In this part, the judgment is appropriate. On the one hand, it states that in this case14 the court “must declare of its own motion that it has no jurisdiction, but is not required to transfer the case to another court”. But, on the other hand, it established a duty of information founded on the best interests of the child: “Insofar as the protection of the best interests of the child so requires, the national court which has declared of its own motion that it has no jurisdiction must inform, directly or through the central authority designated under Article 53 of Regulation No. 2201/2003, the court of another Member State having jurisdiction”. Another interesting case is the Judgment of 22 December 201015 as it refers to the habitual 10 residence of an infant. The facts which gave rise to this judgment are summarised as follows. Mrs Mercredi, born on the Island of Reunion and of French nationality, moved to England to live with Mr Chaffe, of British nationality. On 11 August 2009, a daughter of French nationality, named Chloe, was born from this union. A week after Chloe was born, the couple separated and when she was two months old, both mother and daughter moved to the Island of Reunion. In accordance with the applicable law of England, the biological father of the minor did not have parental responsibility for the child, which can only exist in accordance with the Children Act 1989, that is to say, by virtue of having been named as the father on the birth certificate or by a court order attributing responsibility (parental responsibility order). The father was not notified of his daughter’s departure, but did receive a letter in which Mrs Mercredi explained her reasons for leaving. At the time of the departure, the moving of Chloe was, therefore, lawful (paragraph 23 of the judgment) as Mrs Mercredi was 10

11 12 13 14

15

In several cases from the judgment rendered in 1994 in the case (C-452/93 P) Magdalena Fernández v. Commission. A (Case C-523/07) (2009) ECR I-2805 para. 42. A (Case C-523/07) (2009) ECR I-2805 para. 35. A (Case C-523/07) (2009) ECR I-2805 paras. 37–41. In accordance with Art. 17, as is said in A (Case C-523/07) (2009) ECR I-2805 para. 68. See comments to Art. 17. Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU).

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the only person at that time entitled to “custody rights” in the sense given in Art. 2, paragraph 9 Brussels IIbis Regulation. Following this, the father brought legal action in the United Kingdom and in France, while the mother took legal action in France. In both actions the fundamental element was the fixing of the “habitual residence” for attributing parental responsibility for the purposes of Arts. 8 and 10 Brussels IIbis Regulation. None of the matters dealt with in this judgment are new. 11 On the one hand, the judgment deals with the daughter of unmarried parents, as is the case

in the Judgment of 5 October 2010.16 On the other hand, it deals with specifying the concept of “habitual residence”, something which the Court had already attempted in its Judgment of 2 of April 2009.17 The case in point has a peculiarity which was underlined by the Court: it is dealing with a baby and, in these circumstances “where, as in the main proceedings, the infant is in fact looked after by her mother, it is necessary to assess the mother’s integration in her social and family environment”.18 For this purpose, and by attributing the domestic courts with the power to determine the habitual residence, the Court provides a script on the possible criteria to take into consideration, concluding that “residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State”. These are some “indications” which seem to point clearly toward the residence in the Island of Reunion, discriminating among the parents and without mentioning the best interest of the daughter. In addition, as occurs in the aforementioned case “A”, it suggests the possibility that said criteria may not be sufficient to determine habitual residence, in which case the criterion of the “presence of the minor” applies, by virtue of Art. 13 of the Regulation. 12 As has been indicated at the outset, there was a series of cross-actions in France and the

United Kingdom. Accordingly, the Court had to distinguish between the judgment of a court ordering the non-return of a minor under The Hague Convention of 1980, and the question of attribution of parental responsibility for this minor. For this purpose the order denying the return was to “have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State”. That is to say, the rule of lis pendens contained in Art. 19, paragraphs 2 and 3 of the Regulation remains unaltered. V. The exceptions to the general rule 13 The interests of the child may lead to specific cases being heard before courts which are not

in the place of habitual residence.19 Thus, paragraph 2 of Art. 8 states that paragraph 1 is subject to that which is laid out in Arts. 9, 10 and 12. 16 17 18

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J. McB v. L.E (Case C-400/10 PPU). A (Case C-523/07) (2009) ECR I-2805, comment by González Beilfuss, RJC 2009, 1201. J. McB v. L.E (Case C-400/10 PPU) (2010) para. 55.

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This means, therefore, establishing rules for those cases in which a modification of the 14 habitual residence is made. So, Art. 9 deals with the Member State of the minor’s previous habitual residence having jurisdiction. Art. 10 deals with jurisdiction in the event of child abduction. Art. 12, under the title of “prorogation of jurisdiction” deals with cases in which this matter is linked to divorce suit, legal separation or marriage nullity. We should add to these rules other scenarios in which alternative courts appear to be better 15 placed to hear the cases, in the terms described in Art. 15 on exceptional cases of jurisdiction based on the presence of the child (art. 13), or residual jurisdiction (art. 14) for situations in which jurisdiction cannot be attributed to any Member State court in accordance with the criteria included in the Regulation. In the 2016 Commission proposal, a clarification is added to this rule for the case in which if 16 a child moves from one Member State to another and acquires a new habitual residence there, then the authorities of the Member State of the new habitual residence shall have jurisdiction. The discussion would be based, in those cases, on the fact of the existence of a real habitual residence. Article 9: Continuing jurisdiction of the child’s former habitual residence 1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child’s former habitual residence. 2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

Bibliography Bigot, L’autorité parentale dans la famille desunie en droit international privé (2003) Glennon, Mobility and the post-divorce family: resolution of relocation disputes in the U.S., in: Boele/ Woelki (eds.), Common Core and better law in European family Law (2005), p. 193 González Beilfuss, El traslado lícito de menores: las denominadas relocation disputes, REDI 2010 issue 2, p. 51

19

Lowe, The impact of the revised Brussels II Regulation on cross-border Relocation, ICPJN Special Edition nr 1, 2010, p. 69 The Judge’s Newsletter, Special Edition on The International Judicial Conference on Cross Border Family Relocation, 23–25 March 2010, Washington DC, with interventions by Taylor/Freeman (p. 14), Duncan (p. 77), Lord Justice Thorpe (p. 33).

On the evaluation of these criteria, see Rodríguez Pineau, Diario La Ley 30 January 2004.

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I. Preliminary remarks 1 Disputes relating to the relocation of a child to a foreign country (the so-called relocation

disputes) constitute a subject which has been the focus of growing attention, due to the proliferation of this phenomenon. In effect, this does not pose a problem when the parents, holders of guardianship and custody rights, stay together and relocate to another country. The problem occurs, essentially, when one of the parents, normally the parent who lives with the child, relocates to another country and complications arise relating to the access and visitation rights of the father who continues to live in the State of the previous residence.1 In fact, such situations are the basis of many cases of international child abduction, which are essentially the object of the Hague Convention of 1980, implemented in the European Union by Brussels IIbis Regulation. See, in particular, Arts. 10 and 11. II. Legislative history

2 The wording and inclusion of this rule in the Brussels IIbis Regulation should be read with

reference to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Both instruments although they differ in scope and content have to be applied harmoniously. Thus, in relation to the relocation or change of residence of children, the Regulation shall apply if the move is from one Member State to another. If the move is to a State party to the Convention, then the Hague Convention of 1996 shall apply, and if the move is to a non-Contracting State, then the Convention will cease to be applicable. Art. 9 is maintained with a change in its contests in the 2016 proposal of the Commission. The only change refers to the title of the Article, with a proposal closer to its contents: “Continuing jurisdiction in relation to access rights”. III. Jurisdiction to decide on visiting rights: conditions 3 Argument surrounding these matters usually involves ascertaining whether or not perpe-

tuatio jurisdictionis has to exist and, therefore, whether or not the measures adopted in the State of habitual residence prior to the move are retained. The possibility of perpetuatio fori was rejected by a large majority in The Hague Conference,2 and so it is not surprising that a rule on this might also be included in Brussels IIbis Regulation. The rule contained in Art. 9 intends to make the relocation of the child from the State of habitual residence prior to the legal move to the new habitual residence as easy as possible, an objective shared by Art. 5, paragraph 2 of the Hague Convention of 1996. However, the solution is different, given that in the system of the Hague Convention the change of habitual residence means that the authorities of the Member State of habitual residence have jurisdiction from the exact moment of the move onwards.3 1

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For a general overview of this subject, see Special Edition of The Judge’s Newsletter, on The International Judicial Conference on Cross Border Family Relocation, 23–25 March 2010, Washington DC, with interventions such as Taylor/Freeman (p. 14), Duncan (p. 77) or Lord Justice Thorpe (p. 33). See also González Beilfuss, REDI 2010 issue 2, p. 51. Report Lagarde paras. 41–43 in relation to Art. 5 Hague Convention 1996.

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The rule contained in paragraph 1 of Art. 9 is innovative, insofar as it allows the courts of the 4 State of previous habitual residence to continue to have jurisdiction for a period of three months for the purposes of modifying the visiting rights order. This ensures that the parent who can no longer exercise visiting rights in the same way as before is guaranteed the possibility of approaching the authorities of that State for such a modification. Having said this, this exception to the general rule of Art. 8 is subject to the following series 5 of conditions, which have to be met cumulatively: Firstly, the move must be lawful, that is to say, the parent who takes the child with him/her to another country must be authorised to do so. If this is not the case, Art. 10 would be applied in relation to jurisdiction for cases of unlawful moves or retention. Secondly, the jurisdiction of the authorities of the previous habitual residence is limited ratione materiae to issuing visiting rights, but the authorities of the new habitual residence have jurisdiction in all other matters relating to parental responsibility such as guardianship rights. Thirdly, the authorities of the State of the previous habitual residence must have issued a visiting rights order prior to the move. When this is not the case, Art. 9 does not come into play and, in accordance with Art. 8, the authorities of the Member States of the new habitual residence would have jurisdiction. Therefore, on the one hand, there has to be a court order and an agreement which has not been legally validated will not suffice.4 Moreover, on the other hand, the order has to be issued by the courts of the Member State of the previous habitual residence. If the order has been issued in another Member State, it is however debatable whether Art. 9 (1) also applies. Fourthly, the jurisdiction of the authorities of the State of the previous habitual residence lasts for only three months, to be counted from the moment at which the move occurs, and if those authorities are approached for modification of the visiting rights once the three month period has elapsed they will no longer have jurisdiction. It is on this point where the crucial difference lies in regard of the Hague Convention, insofar as there is no transitory period. The relevant date is the date on which the child was moved, regardless of whether habitual residence in the State to which the child has been relocated has been acquired or not, which constitutes a weakness in the rule.5 In effect, if the decisive fact is the date of the change of 3

4

5

Without reaching an agreement on the possibility of determining a period of validity or on the acquisition of residency. In this regard, Lowe, The impact of the revised Brussels II Regulation on cross-border Relocation, Special Edition of The Judge’s Newsletter, on The International Judicial Conference on Cross Border Family Relocation, 23–25 March 2010, Washington DC, p. 71. One might recall the well-known Purrucker cases: Judgment of 15 July 2010, Bianca Purrucker v. Guillermo Vallés Pérez (Case C-256/09) nyr and Judgment of 9 November 2010, Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10) nyr) in which agreement had been validated in a notarised document, which the father subsequently denied. The statement made in the Practical Guide to the Regulation is debatable in the sense that this rule is only applicable if the child has acquired his/her habitual residence in the second Member State during this three-month period, adding that if it were not acquired during once this period has elapsed, the court of the first State would retain, in principle, their jurisdiction, in accordance with Art. 8.

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habitual residence, then it is easy to imagine that there will be discrepancies, so much so that this date is difficult to establish in many cases. Fifthly, the holder of the visiting rights must continue to have his/her habitual residence in the Member State of the previous habitual residence of the child. If this is not the case, then Art. 9 cannot be applied and the general rule becomes applicable. The fact that the holder of the visiting rights may relocate to the same State of new habitual residence of the child or to another Member State is entirely immaterial. IV. The exception to the limited continuation of jurisdiction 6 Paragraph 2 of art. 9 establishes the non application of the rule contained in paragraph 1 if

the holder of the visiting rights accepts the jurisdiction of the authorities of the Member State of the new habitual residence of the child. This provision refers solely to the case in which the holder of the visiting rights might take part in a proceeding before those courts without challenging the jurisdiction. It is not difficult to understand also that the three month period of continuance of the jurisdiction of the Member State of the previous habitual residence of the child is renounced if the holder of the visiting rights starts proceedings to modify those visiting rights in the Member State of the new habitual residence of the child. Article 10: Jurisdiction in cases of child abduction In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

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Chapter II: Jurisdiction Bibliography B. Ancel/H. Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569 K. Boele Woelki/C. Gonzáles Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia F. Colienne/S. Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: Fulchiron/Nourissat (dir.), Le nouveau I. II. III.

Preliminary remarks . . . . . . . . . . . . . . . . . . . . . . . . 1 Sub-paragraph (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sub-paragraph (b) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223 H. Fulchiron/C. Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Paris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law 2005/5. 34 D. Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015. 821.

IV. V. VI.

Points (i) and (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Point (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Point (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. Preliminary remarks The inclusion of parental responsibility and international child abduction rules is indeed the 1 major difference between the first and the second Regulation “concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility”. As far as international child abduction is concerned, the need for such a new instrument can 2 be questioned,1 since an important and widely ratified convention dealing with the subject is already in force in Member States, namely the Hague Convention of 25 October 1980 on the civil aspects of international child abduction. Moreover, it seems that the 1980 Hague Convention was, and still is, very useful and works quite correctly even though it is, of course, possible to amend national practices to ensure a better implementation of the text. Even though the need for the Hague Convention remains undisputed, it has nevertheless 3 been suggested that there was room for a specific European mechanism regulating intra-European child abduction, a mechanism designed to work in coordination with the 1

For a critical point of view: P. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, JPrIL, vol. 1, April 2005, p. 5; adde M. Pertegas Sender, “La responsabilité parentale, l’enlèvement d’enfants et les obligations alimentaires”, in P. Wautelet (ed.), Actualités du contentieux familial international, Larcier, 2005, p. 183, at. 203.

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more general scheme of the 1980 Hague Convention. This objective is clearly established in Recital 17 of the preamble of the Regulation, which states: 4 In cases of wrongful removal or retention of a child, the return of the child should be obtained

without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11.

5 The origin of the new Regulation can be found in a French proposal of July 2000,2 which led

to difficult negotiations among Member States, some of them arguing that the Hague Convention was sufficient enough to ensure the safe return of the child,3 others stating that the mechanism of the Convention was flawed, particularly Article 13 of the 1980 Convention authorising the courts of the requested State to refuse to order the return of the child under certain circumstances.4 Eventually a more restrictive regime was agreed upon, systematically favouring the return of the child. The balance of the Brussels IIbis Regulation is, therefore, quite different from that of the 1980 Convention. Regretfully, the negotiations among Member States, rather than openly discussing this policy objective, concentrated on the so-called failure of the 1980 Convention.5 6 This new focus is addressed by Articles 10 and 11 of the Regulation. Article 10 is directly

inspired by Article 7 of the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, from which most of the wording of Article 10 is taken. Article 10 establishes a specific jurisdictional rule in cases of child abduction. The difficulty is balancing two opposing objectives. The first objective is to prevent the abductor from initiating proceedings in the Member State to which the child has been taken, thereby allowing him to profit from the abduction by obtaining a decision in that State. The second objective is to take into account the fact of the abduction, which, after a certain period of time, can result in a change of the habitual residence of the child making it unreasonable to eternally deny any jurisdiction to the courts of the State of the new habitual residence.6

7 This rule is supposed to be a response to what is considered “one of the principal weaknesses

of the 1980 Convention”,7 that being the possibility that the court of the State to which the child has been moved can hear the case on the merits once the return of the child has been refused. It should be noted, though, that this result could be challenged, since the objective of 2

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Initiative of the French Republic with a view to adopting a council Regulation on the mutual enforcement of judgments on rights off access to children, OJ C 234, 15th August 2000, p. 7. M. Jäntera-Jareborg, “A European Family law for cross-border situations – Some reflections concerning the Brussels II Regulation and its planned amendments”, Yearbook of PIL (2002), p. 67. See the positions of various Member States in McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, p. 7. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, p. 8. See P. Lagarde, “Explanatory Report on the 1996 Convention”, Proceedings of the 18th session, SDU Publisher, The Hague, 1998, p. 533, at. 557 (hereinafter Lagarde Report). M. Tenreiro, “L’espace judiciaire européen en matière de droit de la famille, le nouveau règlement Bruxelles IIbis”, in H. Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, 2004, p. 19, at 27 (translation is mine).

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the 1980 Convention is not to provide new jurisdictional rules; Article 7 of the 1996 Convention specifically addresses this. One could add that, at least for rights of custody, the problem is also partially solved by Article 16 of the 1980 Convention, which states that the authorities of the State to which the child has been removed shall not decide on the merits “unless an application under this Convention is not lodged within a reasonable time following receipt of the notice”.8 In any case, the difficulty here is to determine the threshold at which jurisdiction should be 8 granted to the courts of the Member State of the new habitual residence. This threshold is defined both with temporal and substantive conditions, which need more detail. The fundamental principle laid down in the first sentence of Article 10 is that the courts of 9 the State to which the child has been wrongfully removed do not have jurisdiction over parental responsibility.9 Moreover, the acquiring of a new habitual residence in the State to which the child has been removed is insufficient to give jurisdiction to the courts of that State; rather, the courts of the Member State in which the child was habitually resident prior to the removal or retention retain jurisdiction. This is an important exception to Articles 8 and 9 of the Regulation, which Articles establish the general rule that jurisdiction in matters of parental responsibility lies with the courts of the State of the habitual residence of the child. This principle by which the courts of the State where the child was habitually resident before 9a the wrongful removal or retention retain their jurisdiction, has to be applied even in cases in which the child had been twice wrongfully removed.10 In such a situation, only the first wrongful removal has to be taken into account, whereas the second one is not relevant to transfer jurisdiction to the courts of the Member State where the child had been first wrongfully removed. In other words, a second wrongful removal or retention does not change the nature of the first abduction. The courts of the State of origin retain jurisdiction even though the child is in an interim 10 situation, where the former habitual residence has been lost, while the new habitual residence has not yet been acquired. In that case, normal rules would give jurisdiction to the courts of the State where the child is present (Article 13, see infra), which would be, in the situation of an international abduction, the State to which the child has been abducted. Once again, to prevent this from occurring, the application of the normal rules is blocked and replaced by an exceptionally extended jurisdiction of the courts of the State of origin. Those exceptions to the normal rules of the Regulation show clearly that the objective of the 11 provision is to block any advantage being gained by the wrongful removal or retention of the child, and that such removal or retention will be insufficient to confer jurisdiction, In such a situation, the only competent courts are the courts of the State of origin, and the litigating parents should only go before those courts to have their case settled.11 8 9 10 11

See, in France, Cass. Civ.1e, 25 January 2005, JDI 2006. 142, note H. Gaudemet-Tallon. See in France, Cass. Civ. 1e, 5 March 2014, n°12-24780, JDI 2014. 870, note E. Gallant. See in France, Cass. Civ. 1e, 5 March 2014, n°12-24780, JDI 2014. 870. On this goal, see A. Devers, “Les enlèvements d’enfants et le règlement Bruxelles IIbis”, in Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, 2004, p. 33, at. 37.

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12 Nevertheless, under some conditions, the jurisdiction courts of the State where the child has

acquired his new habitual residence can be accepted. Those conditions are inspired by the conditions laid down by Article 7 of the 1996 Hague Convention, even though some differences can be noted. These conditions are of an alternative nature, either the explicit acquiescence (sub-paragraph (a)) or the inactivity (sub-paragraph (b)) of the holder of rights of custody. The proposal of recast of Brussels IIbis Regulation12 does not bring any fundamental change in the Article 10.13 II. Sub-paragraph (a) 13 The first of the alternatives provides for jurisdiction of the courts of the new habitual

residence if the holders of the rights of custody have acquiesced in the removal. Acquiescence has to be by each person having rights of custody, which means that in case of joint custody, all the holders must acquiesce. 14 It is quite clear that the jurisdiction of the court of the new habitual residence can be

challenged based upon the lack of acquiescence by the left-behind. However, if the parents eventually agree on the removal, there is room for a non-litigious resolution of custody and access rights, which is obviously a more favourable resolution. The possibility of a peaceful resolution allows for return to the normal rule of jurisdiction of the Regulation, which is the jurisdiction of the courts of the habitual residence of the child at the time of the proceedings. 15 Besides, acquiescence under the 1980 Convention is also one of the conditions that could

justify a non-return order under Article 13. There is, however, an important difference between the Regulation and the 1996 Convention, on the one hand, and the 1980 Convention, on the other. In Article 16 of the 1980 Convention, jurisdiction of the courts of the new habitual residence over custody rights can be acquired by a non-return order, acquiescence being only one of the various conditions necessary to obtain such an order. In itself, a nonreturn order is enough to confer jurisdiction on the courts of the new habitual residence. 16 Whereas, under Article 7 of the 1996 Convention and Article 10 of the Regulation, a non-

return order is not enough to give jurisdiction to the courts of the new habitual residence. Only acquiescence can have such an effect. The rapporteur of the 1996 Convention stated that this approach had been adopted, after comments made by the United States, in order to “avoid jurisdiction to take measures of protection for the child being able to depend, to any extent at all, on a decision of the authorities of the State to which the child has been removed”.14 It makes very clear that, in itself, a non-return order is not enough to confer 12

13 14

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Article 65 of the Regulation provides that the Commission had to present a report on the application of the Regulation to the European Parliament, the Council and the European Economic and Social Committee by 1 January 2012, in order to make, if need be, some proposals of adaptations. The report was published on 15 April 2014. Therefore, a working group of experts has joined the Commission to have a reflection about a recast of the Brussels IIbis Regulation and a proposal of a new Regulation was adopted on 30 june 2016: Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM(2016) 411 final. See Footnote 25. Lagarde Report, (fn. 6), p. 557.

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jurisdiction on the merits to the courts of the State of the new habitual residence. Legally, there is therefore a complete disconnection between the litigation over the return of the child and the rules on jurisdiction on the merits. Acquiescence will have two different effects, which must be distinguished: the first one is to allow for a non-return order; the second one is to confer jurisdiction on the courts of the Member State to which the child has been removed. The last question is to determine whether acquiescence has been given by the holder of 17 custody rights. A distinction here can be drawn between active and passive acquiescence.15 Express and written acquiescence is, of course, the simplest situation and can justify the jurisdiction of the court of the State to which the child has been removed. Some authors argue that action taken by the left-behind parent can also be proof of acquiescence, for example, the seising of the court of the requested State on the merits.16 It seems, though, that the courts should be particularly cautious and ensure that acquies- 18 cence is certain, even if it is not expressly given.17 As the case law on Article 13 (1) (a) shows, it is important that the reality of the acquiescence is established, forcing both an objective and subjective investigation.18 In any case, it is suggested that purely passive behaviour from the holder of custody rights should not qualify as acquiescence.19 It is true that inaction has sometimes been considered passive acquiescence20 and that nothing in the Regulation prevents interpreting an absence of action by the left-behind parent as acquiescence. However, the provisions on acquiescence rely on a determination that the left-behind parent has eventually agreed to the removal; it seems therefore that it would be largely a matter of interpreting the fact that this parent has not commenced return proceedings and inferring from it an agreement.21 The risk in that situation would be that acquiescence is considered to exist only because of the close links that the child has developed in the country to which he has been removed. In that situation, however, the fact to be taken into consideration is the passing of time, which is addressed under sub-paragraph (b), and not just a hypothetical acquiescence from the left-behind parent.

15

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18

19

20 21

On this distinction, which has led to important case law in UK, see P. Beaumont/P. McEleavy, The Hague Convention on International Child Abduction, Oxford University Press, 1999, p. 115–118. See A. Devers, “Les enlèvements d’enfants et le règlement Bruxelles IIbis”, at 39. See also the situation in the leading British case on the question: H. v. H (Abduction: Acquiescence), (1996) 2 FLR 570. See, in France, Cass. Civ. 1e, 16 July 1992, Bull. Civ. 1992, I. n°228, p. 151, stating that implied acquiescence can be accepted as long as it is certain (“cet acquiescement peut être implicite, mais doit être certain”). See for example High Court (Family Division), A. v. A (Children) (abduction: acquiescence) (2003) All ER (D) 284, where the exact nature of the consent given by the father was discussed. See also, in France, Cour de cassation, 16 July 1992, Bull. Civ. I, n° 228; D. 1993. Som. 352, obs. B. Audit. For the same position, see H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in: H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, 2005. 223, at 228. See the discussion in Re A. (Minors) (Abduction: custody Rights) (1992) Fam. 106. For a different and more flexible interpretation, from the Hague Convention point of view, see P. Beaumont/P. McEleavy, The Hague Convention on International Child Abduction, p. 125.

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III. Sub-paragraph (b) 19 The general idea underlying sub-paragraph (b) is that, after the child has spent a significant

period of time in his new environment and acquired there his new habitual residence, and if the holder of the rights of custody has been inactive – either by not asking for the return of the child or by giving up the return proceedings he had initiated -, the removal should cease to be considered temporary and it can be assumed that the child has definitely settled in the Member State to which he has been removed. The effect of sub-paragraph (b) requires two different conditions: the passing of a significant period of time and the inactivity of the holder of rights of custody. 20 The first sentence of sub-paragraph (b) establishes both a time limit and a substantial

finding by the court that the child “is settled in his or her new environment”. Once again, this sentence is copied from Article 7 of the 1996 Hague Convention, which in itself took inspiration from Article 12 of the 1980 Convention. The common inspiration shows once again that, even though there is no formal connection between the non-return order and the shift of jurisdiction, the conditions for both legal effects should be as close as possible.

21 The general idea, found in both Conventions and in the Regulation, is that time alone is not a

sufficient factor if the child has not settled in his new environment. This requirement allows for judicial discretion to be exercised in the best interest of the child, as required by the general principle underlying the entire Regulation. 22 The time period of one year, however, is defined quite differently on the one hand in the

1980 Convention, and in the 1996 Convention and the Regulation on the other hand. In the 1980 Convention, Article 12 refers to a one-year period commencing “from the date of the wrongful removal or retention”, where in Articles 7 of the 1996 Convention and 10 of the Regulation, the time period starts from the moment when “the person … having right of custody has or should have had the knowledge of the whereabouts of the child”. Due to this difference, it is therefore possible to foresee a hypothetical case where the court of the State to which the child has been removed is not bound to order the return of the child, although it does not have the right to hear the case on the merits. This hiatus would certainly be most unfortunate and could lead to some important practical difficulties.22 23 However, such a situation should be rare in practice since it can happen only when the child

has been hidden from the left-behind parent, which would probably allow the requested court to consider that the child has not settled in his new environment, therefore ordering the return.23 Moreover, this difference, which emphasises the role of the court of the State of origin, is certainly consistent with the general spirit of the provision of the Regulation on child abduction. Particularly, Article 11 (8) of the Regulation provides, in any case, for priority to be given to the decisions of the Member State where the child was habitually resident before the removal, including against a non-return order of the requested State. 22 23

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For those difficulties on the standpoint of the 1996 Convention, see Lagarde Report, (fn. 6), p. 558. For an analysis on standpoint of the 1980 Convention, see P. Beaumont/P. McEleavy, The Hague Convention on International Child Abduction, p. 203 et seq. Recent and important case law on this point can be found on the International Child Abduction Data Base set up by the Hague Conference: http://www.in cadat.com.

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This rule, therefore, should resolve most of the difficulties which could be encountered in this difficult situation, since in any case, the decision of the court of the State of origin of the child will prevail. In any event, the expiry of the one-year period and proof that the child has settled in his new 24 environment are not enough to give jurisdiction to the courts of the State to which the child has been removed. Another important condition is the inactivity of the holder of the rights of custody. In essence, the general idea of this condition is taken from Article 12 of the 1980 Convention, which was specified in Article 7 (1) (b) of the 1996 Convention. The Regulation, however, has gone into further detail, subdividing the condition of general inactivity into a few hypotheticals. IV. Points (i) and (ii) The first hypothetical is when the holder of the rights of custody has not lodged any request 25 for the return of the child (point i), or has withdrawn his request (point ii). This is the situation foreseen by both the 1980 and the 1996 Conventions and probably the most likely to occur in practice.24 The complete inactivity of the holder of the rights of custody, which cannot be legally interpreted as a form of acquiescence, shows nevertheless a kind of indifference on the part of the left-behind parent. Therefore, it can be considered that it is now in the best interest of the child to give jurisdiction to the courts of the State to which he had been moved more than a year before, in which he has settled, and from which the owner of the rights of custody has not tried to remove him. V. Point (iii) The second hypothetical case is more technical and closely linked to the procedural pecu- 26 liarities of the return procedure, but in essence the general idea of the inactivity of the holder of the rights of custody is kept. It is certainly of the utmost importance to coordinate with the greatest precision possible litigation over the return of the child and the jurisdiction over the merits on parental responsibility. As it has just been seen, the general principle laid down in the first paragraph of Article 10 is to maintain the jurisdiction of the courts of the State of origin. It nevertheless remains important, in order to prevent either lack of jurisdiction or conflicting decisions, to organise a specific cooperation between the courts of the State of origin and the courts of the State to which the child has been removed. As will be seen (for a more precise commentary, see infra), Article 11 is the provision dealing 27 with the question of child abduction. It tries to organise a precise coordination between the 1980 Convention and the Regulation. In that scheme, Articles 11 (6) and (7) deal with the action that has to be taken in the courts of the State where the child was habitually resident before the removal when a non-return order is rendered in the State to which he has been removed. Broadly, the Regulation provides for a thorough exchange of information by which the left-behind parent is notified of the proceedings before the requested court and of the non-return order. He can then appear before the court of the State in which the child was habitually resident, which, once again, would still have jurisdiction on the merits.

24

P. Beaumont/P. McEleavy, The Hague Convention on International Child Abduction, p. 125.

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28 However, if the left-behind parent does not react within three months of the date of noti-

fication in his country, then it can be presumed that he has either acquiesced or taken into account the non-return order. It can therefore be accepted that the courts of the new habitual residence of the child acquire jurisdiction over the merits. However, it has to be pointed out that, in some situations, there might be a delay before the courts of the State of refuge gain jurisdiction, since Article 10 (b) supposes that one year has elapsed since the removal. It is therefore possible that the proceedings have been closed in the State of origin before the expiry of the one-year period. In that situation, the court of the State of origin retains its competence, since Article 11 (7) states that the court seized shall close the case “without prejudice to the rules on jurisdiction contained in this Regulation”, meaning that they retain their jurisdiction until the one year period has ended. To say the least, the situation in that case would be very confused. 29 As one can see, the rationale of point (iii) is not very different from points (i) and (ii), since

what is at stake in all hypothetical cases is a kind of indifference on the part of the left-behind parent, shown by an inactivity that demonstrates he is no longer trying to use legal means to obtain the return of the child. Once again, in this situation, it seems possible to infer from the behaviour of the left-behind parent that jurisdiction should pass to the courts of the State of the new habitual residence of the child.25 VI. Point (iv) 30 The same obligation to cooperate underlines Article 10 (b) (iv), which deals with a slightly

different situation in which implicit acquiescence of the left-behind parent is not the issue. 31 The fundamental principle in child abduction cases is that the court of the State of origin has

priority over the courts of the State to which the child has been removed, and it is one of the key decisions of the authors of the Regulation that this priority is maintained even when a non-return order is rendered in the requested State (see infra, Article 11–8). 32 Many situations need to be considered, one of them being that a decision on custody is

rendered by the courts of the State of origin of the child that does not entail the return of the child. In that situation, it can be said that the removal of the child has in effect been “ratified” by the normally competent court, allowing for the shift of jurisdiction to the courts of the new habitual residence of the child. It has to be stressed that, in any case, this shift can only occur after one year and proof that the child has settled in his new environment. It is the presence of all those conditions that could lead to giving jurisdiction to the courts of the new habitual residence. In other words, if a decision by a court in the State of origin before the expiration of the one-year period does not entail the return of the child, then the courts of that State retain their jurisdiction, while the courts of the requested State cannot be seized on the merits. 33 The Court of Justice of the European Union decided, in a rather complicated case,26 that a 25

26

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The Proposal of a new Regulation adds a new hypothesis: “a request for return lodged by the holder of rights of custody was refused on grounds other than Article 13 of the 1980 Hague Convention”. ECJ, Povse, 1 July 2010, 211/10 PPU, Reports of cases 2010 I-06673, Europe 2010. 349, note L. Idot; JCP 2010. II. 956, note A. Devers; Procédures 2010. 344, note C. Nourissat.

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provisional measure rendered in the Member State in which the child had been removed, did not constitute a “judgment on custody that does not entail the return of the child” within the meaning of Article 10 (b) (iv). That approach clearly implies that a “provisional measure cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed”. The spirit of Article 10 is preserved, which tends to maintain, as it has been seen, jurisdiction to the courts of the Member State from which the child has been wrongfully removed, until it could be certain that the removal lost its wrongful dimension, and provided that the child has acquired habitual residence in the State in which he has been removed, for one year and has settled in his new environment. Article 11: Return of the child 1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention’), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

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8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.

Bibliography B. Ancel/H. Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569 K. Boele-Woelki/C. Gonzáles Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia F. Colienne/Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: Fulchiron/Nourissat (dir.), Le nouveau I. II. III. IV. V.

Preliminary remarks . . . . . . . . . . . . . . . . . . . . . . . Paragraph (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 10 16 28 40

droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223 H. Fulchiron/C. Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Patris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law, Vol. 1, No. 1, 2005, p. 5 D. Porcheron, “La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité ?”, Clunet 2015. 821.

VI. VII. VIII. IX.

Paragraph (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraph (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 54 62 71

I. Preliminary remarks 1 Article 11 is the provision dealing with international abduction and organisation of a spe-

cific European procedure within the scheme of the 1980 Convention. The fundamental principle of Article 11, and indeed the entire Regulation, is that the European system does not replace the 1980 Convention, but merely completes it.1 2 Recital 17 makes this very clear by stating that: “In cases of wrongful removal or retention of

a child, the return of the child should be obtained without delay, and to this end the Hague 1

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For a general view on the relationship between the Regulation and the Convention, see E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, pp. 71 et seq. A. Schulz, “The New Brussels II Regulation and the Hague Conventions of 1980 and 1996”, IFL, March 2004, p. 22.

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Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation”. The notion of habitual residence which is referred to in Article 11 has to receive a similar 2a content as “habitual residence” in Article 8.2 The court of the refuge State, during the return proceedings, has jurisdiction to determine the habitual residence of the child in order to decide if the removal is a wrongful one or not.3 The first objective of the Regulation is therefore to ensure a certain procedural unification 3 among Member States, ensuring that litigation over the return of the child will be dealt with in the same way in various States. To that effect, the efficiency of Community Law here reinforces the implementation of the 1980 Convention. However, as every commentator has remarked, this completion of the 1980 Convention 4 should not conceal the fact that there is a fundamental change of policy underlying the addition made by the Regulation to the 1980 Convention.4 The new goals are quite clearly stated in Recitals 17 and 18 of the Regulation, which make quite clear that two major changes are added to the 1980 Convention by the Regulation. The first one is that the return of the child is greatly favoured by the Regulation, even more 5 than it is in the 1980 Convention. Underlying this goal is the question of the implementation of Article 13 of the 1980 Convention, which allows for a non-return order by the requested court. The balance sought by Article 13 is, of course, fundamental to the whole balance of the 1980 Convention, which tries to organise a simultaneously quick and safe return of the child. This balance has been largely modified by the Regulation, which gives a clear priority to the return of the child, limiting greatly the impact among Member States of Article 13 of the Convention. The second change, which is a mere consequence of the first one, is the fundamental priority 6 given to the decisions rendered in the State of origin of the child. This priority is already affirmed by Article 10, since, as an exception to the general rule, the courts of the State of refuge are deprived of jurisdiction on the merits in case of international child abduction, while courts of the State of origin retain their jurisdiction. As far as litigation over the return of the child is concerned, this priority is shown by various provisions, particularly the one contained in Article 11 (8) showing that a return decision ordered by the courts of the State of origin can override a non-return decision ordered by the requested court. Before addressing the details of the provision, general consideration should be given to those 7 fundamental principles. It is regrettable that those major changes were not discussed and adopted for what they were, 8 2

3 4

On the notions of wrongful removal and habitual residence, see the analysis of Article 2 (11) and Article 8, supra. See EJC 9 October 2014, C-376/14 PPU. B. Ancel/H. Muir Watt, “L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis”, Rev. Crit. DIP. 2005, 569, at 591; P. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, JPrIL, vol. 1, April 2005, p. 5, at 8.

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but where rather proposed as a response to a supposedly flawed Convention.5 It is submitted, however, that the result of the Brussels IIbis Regulation, when it comes to international child abduction, is an acceptable one, as it sets out an international judicial cooperation which is open only to Member States. The Regulation is integrated into a more general scheme of international judicial cooperation, which has led to the creation of a European Judicial Network, set up by the Council decision of 16 December 2008.6 This institutional scheme provides for practical cooperation among Member States courts, which allows for greater confidence in the courts of the State of origin, allowing in turn for a limitation on the power of the requested courts. This rather optimistic description should of course not obscure the fact that the implementation of the 1980 Convention has sometimes led to an important and most regrettable lack of cooperation, including among Member States.7 Such a situation could of course happen again in the framework of the Regulation, and institutional cooperation would not be of great help in that situation. However, it seems that clear priority to the courts of the State of origin might be, eventually, a way to solve the tensions between States, since at the end of the day, the decisions that will actually be obeyed are the ones coming from the State of origin. Conflicting decisions should therefore be avoided and, where it seems impossible to avoid them, priority given to the decision rendered in the State of origin is at least a technical way of resolving the difficulty. Such a balance seems therefore to allow for a strict return policy and a shift of the centre of gravity of the litigation to the courts of the original habitual residence of the child. 9 Technically, Article 11 does not form an independent set of rules, giving a complete legal

framework for international abduction litigation. Moreover, despite the title of chapter II of the Regulation, Article 11 does not concern jurisdiction; it rather collates some rules of the 1980 Convention. Therefore, Article 11 can only be read together with the relevant provision of this Convention. In other words, the organisation of the legal regime of international child abduction is a regional and particular version of an international agreement, combining Community law and international law. Although politically understandable, the approach will probably lead to some confusion on occasion, since the task of mixing the two instruments is not always an easy one for practitioners.8 The proposal for a new Regulation (Brussels IIbis Recast)9 does not bring any fundamental 5

6

7

8 9

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For a critic of this argument and of its influence on the negotiations, McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, at 7. Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network, OJ, L 348, 24/ 12/2008, p. 130. See the examples in McEleavy/Beaumont, The Hague Convention on International Child Abduction, p. 242 et seq. See the various decisions rendered by ECJ, in particular with regard to Article 11 (8), infra. Article 65 of the Regulation provides that the Commission had to present a report on the application of the Regulation to the European Parliament, the Council and the European Economic and Social Committee by 1 January 2012, in order to make, if need be, some proposals of adaptations. The report was published on 15 April 2014: COM(2014) 225 final. Therefore, a working group of experts has joined the Commission to have a reflection about a recast of the Brussels IIbis Regulation. A proposal for a new Regulation was adopted on 30 june 2016: Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM(2016) 411 final.

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change, but seeks to improve the prompt return mechanism of the 1980 convention. The Proposal chooses to devote a full chapter to child abduction.10 The modifications mainly concern the concentration of local jurisdiction, the speed of the return procedure, the limitation of appeals and, at least, mediation.11 II. Paragraph (1) Paragraph 1 of Article 11 has to be read in connection with Articles 60 and 62 (for a complete 10 commentary of those Articles, see infra). In short, those two Articles organise the relationship between the Regulation and various international Conventions, including the 1980 Convention. The adopted solution is that where the Regulation provides for specific rules, those rules will prevail over the applicable Convention provisions (Article 60), including the 1980 Convention (Article 60 e). However, in matters not governed by the Regulation international Conventions, and particularly the 1980 Convention, which is expressly mentioned, continue to have effect (Article 62). Article 11 only adds to that organisation a specification that obliges the court of a Member 11 State to specifically apply paragraphs 2 et seq. to litigation over the return of the child, based on the 1980 Convention. As far as the child abduction Convention is concerned, such a hierarchy organised by the 12 Regulation could lead to possible public international law problems. In public international law, modifying the functioning of an international instrument is a violation of this instrument if it has not been expressly agreed in the text. Such an agreement, however, can be found in Article 36 of the Convention, which states that: “(N)othing in this Convention shall prevent two or more Contracting States, in order to 13 limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.” This Hague Convention provision is fairly unusual,12 since it only accepts derogation from 14 the text for a substantial reason: the prompt return of the child. It seems that the Regulation can fit into this category since, as explained supra, the main objective of the provision on child abduction is to strengthen the efficiency of the return mechanism. Of course, and once again for public international law considerations, the specific solution 15 added by paragraph 1 is only applicable among Member States, since it is quite obvious that 10 11

12

Articles 21 to 26 of the Proposal. See T. Kruger/L. Samyn: “Brussels IIbis: successes and suggested improvements” J. Priv. Int. L. 1/2016, p. 132. This resolution is also quite different from the usual Hague practice, which is normally neutral on the substance of provisions derogating from the Convention. See, for example Article 52 of the 1996 Convention on the protection of children, which states in Article 52 (2) that “This Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain, in respect of children habitually resident in any of the State parties to such agreements, provisions on matters governed by this Convention”.

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third States cannot be bound by a Community text. Therefore, the provisions laid down in Article 11 can be applied only when the child is removed from a “Member State in which he was habitually resident before the wrongful removal or retention” to another Member State.13 This precision in Article 11 (1) is essential for determining the respective geographical scopes of the Regulation and the 1980 Convention. In all other situations (child moved from a Member State to a third State or from a third State to a Member State), only the child abduction Convention will apply, providing of course that both States are parties to this Convention. In this respect, one can recall that Denmark is not considered as a Member State, as it is specified in Article 2 (3),14 but is however a Contracting State of the 1980 Hague Convention. Therefore an unlawful removal or retention between a Member State and Denmark will be submitted only to the Hague Convention and not to the Brussels IIbis Regulation. III. Paragraph (2) 16 Hearing the child in matters affecting him is a growing fundamental principle in the inter-

national arena. Particularly, it is recognised as a general principle in the UN Convention on the Rights of the Child of 1989, in Article 12, which states that: 17 “States Parties shall assure to the child who is capable of forming his or her own views the

right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and the maturity of the child. 18 For this purpose, the child shall in particular be provided the opportunity to be heard in any

judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.” 19 A close, yet far less detailed, provision can be found in Article 24 of the Charter of Funda-

mental Rights of the European Union. Lastly, a very detailed provision on the procedural rights of the child, including the right to be heard, is found in Article 3 of the European Convention on the Exercise of Children’s Rights, adopted in 1996 under the auspices of the Council of Europe. 20 The effect of those provisions can of course differ in the various Contracting States depend-

ing on their specific procedural requirements, which differ from one State to another.15 Therefore, it seems that those provisions cannot be understood as conferring an absolute right of the child to be heard. Rather, they have been understood in some States as ordering the court to justify precisely why it would oppose, in a specific procedure, hearing the child.16 21 As far as international child abduction is concerned, the provision of Article 11 (2) is not

without precedent. Particularly, Article 13 of the 1980 Convention states that: “the judicial 13 14 15

16

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See ECJ, 9 Oct. 2014, C-376/14 PPU. For an analysis of this provision, see supra. H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 237. In France, see in particular Cass. Civ. 1e, 18 May 2005, Rev. Crit. DIP. 2005, 679, note D. Bureau.

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or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”. As one can see, hearing the child’s views opens up independent grounds justifying a non- 22 return order, even if statistics show that this provision of the 1980 Convention is seldom used as a basis for a non-return order.17 In the Regulation, hearing of the child has a more general scope: it is not to be considered as a 23 particular basis for a non-return order, but rather as a general requirement concerning the child’s fundamental rights, as reflected in Article 11 (2) in connection with other provision of the Regulation.18 If hearing the child is an explicit requirement only in child abduction procedures, it is nevertheless an important and general ground for non-recognition of decisions established in Article 23 (b). It is also a condition for the delivery of the certificate that guarantees the international efficiency of a decision on the rights of access under Article 41 (2) (c) or on the return of the child under Article 42 (2) (a) (for an analysis of all those provisions, see infra). To that extent, the Regulation is closer than the 1980 Convention to the more general texts on the rights of the child, even though the specific condition under which a child will be heard will largely depend on the national laws of procedure. The exact extent of the obligations laid down in Article 11 (2) remains a little unclear. The 24 Commission, in its Practice guide, states that “hearing of the child is one of the requirements for […] decisions entailing the return of the child”.19 This statement could be considered somewhat excessive, however, when one looks at the precise wording of Article 11 (2), which only asks that the child “is given the opportunity to be heard”. Due to this wording, some practical and procedural questions are raised, the most important 25 of which is the exact nature of the obligation imposed on the court: does it have to, ex officio, ask the child if he wants to be heard or is the mere possibility of the hearing enough? Once again, the Commission takes the more expansive view, “the court shall give the child the opportunity to be heard”.20 But it seems that the exact requirement is rather unclear. It could be argued that the Regulation does not require the court to address the question of the audition of the child on its own motion. If such an interpretation is correct, the court would 17

18

19

20

See the statistics for 2008 in: Permanent Bureau of the Hague Conference, “A Statistical Analysis of applications made in 2008 under the Hague Conference of 25 October 1980 on the civil aspects of international child abduction”, Prel. Doc. N° 8, May 2011, downloadable at http://www.hcch.net; S. Armstrong, “L’articulation des règlements communautaires et des conventions de La Haye”, in H. Fulchiron/C. Nourissat, Le nouveau droit communautaire du divorce et de la responsabilité parentale, Paris, Dalloz, 2005, p. 111, at. 114. In France, see Cass. Civ. 1e, 14 February 2006, Rev. crit. DIP. 2007. 96, note E. Gallant. Cass. Civ. 1e, 8 July 2010, n°09-66.406, Dr. famille 2010, comm. 58, note L. Galichet. See, in general: A. Gouttenoire, “L’audition de l’enfant dans le règlement Bruxelles 2bis”, in H. Fulchiron/ C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 201 and P. Klötgen, “La portée juridique donnée à la parole de l’enfant. Propos critique”, in H. Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, Brussels 2004, p. 337. European Commission, Practice Guide for the application of the new Brussels II Regulation, June 2005, p. 42, http://ec.europa.eu/civiljustice/divorce/parental_resp_ec_vdm_en.pdf (hereinafter Practice guide). Practice guide (fn. 11), at 33.

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only have the possibility to hear the child and would only have the obligation to justify a possible refusal if the child asks to be heard. 26 On the other hand, it is clear from the text that the court is not bound to accept a request for

a hearing of the child. The court can consider that the hearing is inappropriate “due to the child’s age and degree of maturity”.21

27 As one can see, there is certainly some room for interpretation here, and the exact nature of

the modification imposed on national procedural rules by the Regulation is still unclear. Due to the practical and theoretical importance of the question, clear guidance from the ECJ on this point will certainly be welcomed. IV. Paragraph (3) 28 This provision of the Regulation is a very important change from the 1980 Convention, and

probably the least controversial one.22 29 The obligation to institute expeditious procedures has always been a major goal of child

abduction rules. It is quite obvious that the whole idea of the return procedure would be jeopardized if the delay in obtaining a return order was so long that the child had time to adapt to his new environment. Moreover, judicial delays were one of the main challenges to the implementation of the Convention in some countries.23 30 There is a general consensus on the need for a quick procedure, and the 1980 Convention

and the Regulation concur to realise this ambitious objective. However, the very nature of the Hague Conventions and the inherent limitations on international judicial cooperation made it very difficult to accept specific rules on quick procedures and specific time constraints. 31 Therefore, Article 2 of the Convention demands that the Contracting States use “the most

expeditious procedures available”. Then, Article 11 adds that the authorities “shall act expeditiously”, and provides for an exchange of information between the Central Authorities of the requesting and the requested State if a six-week period within which a decision must be obtained has not been respected. Therefore, even though the general objective is quite clear and generally accepted, the Convention is nonetheless lacking some mandatory mechanism by which it could force the Contracting States to adopt specific procedures. As Mrs Perez-Vera explains: 21

22

23

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For an opposite view, see A. Gouttenoire, “L’audition de l’enfant dans le règlement Bruxelles 2bis”, at p. 203. It has been strongly approved from the Hague point of view: S. Armstrong, “L’articulation des règlements communautaires et des conventions de La Haye”, in H. Fulchiron/C. Nourissat, Le nouveau droit communautaire du divorce et de la responsabilité parentale, Paris, Dalloz, 2005, p. 111, at 115, even though the author remarks that “the obligation to reach a decision on intra-community cases within a short time period should not delay decisions in cases involving third States or discriminate against children habitually resident outside of the European Community”. See examples in Beaumont/McEleavy, The Hague Convention on International Child Abduction, p. 248 et seq.

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“(T)he provision’s importance cannot be measured in terms of the requirements of the 32 obligations imposed by it, but by the very fact that it draws the attention of the competent authorities to the decisive nature of the time factor in such a situation”.24 Due to the particular nature of the ties among Member States and, particularly, to the 33 judicial cooperation mechanisms, the Regulation is much more precise and, hopefully, much more efficient. The general requirement, which is described in the first sentence of Article 11 (3), comes directly from the 1980 Convention: the “most expeditious procedures available in national law” should be used to order the return of the child. This resolution is no different from the Convention. The Commission, in its Practice guide, gives a list of the various expeditious procedures available in Member States.25 What really differs from the Convention is the second sentence, which sets up a very strict 34 maximum period of six weeks for obtaining a decision, starting from the lodging of a return application. The great novelty here is the mandatory nature of this maximum period of time, as opposed to the indicative nature of the same six weeks found in Article 11 of the Convention, or in other international texts.26 Some national laws have already been modified to take into account this new mandate of the Brussels IIbis Regulation.27 However, even though the maximum period of time is of a mandatory nature, the exact 35 sanction that could be inflicted if ever this maximum delay is not respected is not given in the Regulation. It seems that, in accordance with general rules of Community law, State responsibility could be considered by the applicant.28 The question of sanction seems to be of particular importance, since it is sometimes remarked that this six-week period of time seems to be extremely optimistic and might be very difficult to respect in some Member States.29 “Exceptional circumstances” can be a justification for the requested courts taking more than 36 six weeks to decide the return issue. The exact nature of those “exceptional circumstances” is not entirely clear and leaves room for interpretation. It seems quite clear that practical circumstances (e.g. difficulty to locate the child) could be accepted, whereas legal circumstances (e.g. time needed for the appointment of an expert) would probably be more difficult

24

25 26

27

28

29

E. Perez-Vera, “Explanatory Report on the 1980 Child Abduction Conventions”, Acts and Documents of the Fourteenth Session (1980), vol. 3, Child Abduction, n°105. Practice Guide (fn. 11), p. 33. See the Strasbourg Convention on contact concerning children, in which Article 16 (2) states that: “A decision on the return of the child shall be made, whenever possible, within six weeks of the date of an application for the return”; A. Devers, “Les enlèvements d’enfants et le règlement Bruxelles IIbis”, in H. Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, 2004, p. 33, at. 42. For example, see: In Germany, UP Gruber, “Die neue EheVO und die deutschen Ausführungsgesetze”, IPRax 2005, 300; In France, see Decret n°2004–1158, reforming the code of civil procedure in matters of international child abduction, Art. 1210-5 ccp. H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 240. P. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, JPrIL, vol. 1, (2005), p. 5, at 26.

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to accept. In any case, those exceptional circumstances are an exception to the general rule and should be strictly interpreted. 37 The most difficult question is the nature of the decision that must be obtained within this

six-week period. A first instance decision, for example, can be subject to appeal, and the appeal could lead to suspension of the enforceability of the first instance decision. So the question is whether this six-week period applies only to the decision of first instance, or whether it applies to obtaining a final enforceable decision. 38 For the European Commission, the sentence must be understood in the sense that it should

take no longer than six weeks to obtain an enforceable decision.30 Some doubts, however, have been raised by commentators since the text of the Regulation is not explicit, and since it might be considered rather optimistic.31 For the Commission, in some systems, first instance decisions are not enforceable if they are appealed;32 in such a case, the first instance and the appellate decisions should be obtained within this strict six-week period. It should be noted that several procedural means of ensuring the quickness of the procedure should be possible in the various Member States: expedite the appeal procedure, declare that first instance decisions are enforceable pending any appeal or, more radically, deny the appeal. This last solution, although possible, seems however to open up some other difficulties, mostly in respect of the functioning of Article 6 of the European Convention on Human Rights (ECHR), which, it could be argued, would be violated if the appeal procedure were completely denied. It is to be remarked, though, that under certain circumstances, Articles 6 of the ECHR might be compatible with limitations on the right to appeal.33 39 Whatever the solution adopted in the various Member States, uniformity of this time limi-

tation will be a great progress in the implementation of the Convention, ensuring that one of its main goals, speed, is indeed respected.34

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M. Tenreiro, “L’espace judiciaire européen en matière de droit de la famille – Le nouveau règlement Bruxelles II”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 39, at 46. Practice guide (fn. 11), pp. 33–34. H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 240; P. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership ?”, JPrIL, vol. 1, April 2005, p. 5, at 32, who considers that “the suggestion by the Commission that appeals should also be dealt with within this time period is simply fanciful, as well as being unjustified by the actual wording of paragraph 3”. In France, decisions rendered upon the specific procedure for international child abduction, are deprived of provisional enforcement de plano, See Cass. Civ. 1e, 20 January 2010, n°08-19.267, JCP. 2010381, note A. Devers. The requirements of Articles 6 on the right to appeal are however subject to some flexible interpretation, see for ex. House of Lords, 22 July 2004, Rev. Crit. DIP. 315, note H. Muir Watt. N. Lowe, “In the best interests of abducted Children? Securing their immediate return under the 1980 Hague Abduction Convention”, in Fulchiron, (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, 2004, p. 67.

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V. Paragraph (4) Article 13 b of the 1980 Convention gives the authority in the requested state the right to 40 refuse the return of the child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This Article has been widely discussed and is one of the cornerstones of the Convention. Should it be given too broad an interpretation, the whole balance of the Convention would be at risk, since the return of the child would be paralysed. For this reason, it is widely accepted that the wording of Article 13 (b) should be strictly interpreted.35 As noted, this balance of the Convention has been largely modified by the Regulation, which 41 imposes a very strict return policy. Article 11 (4) is part of that policy and limits the functioning of Article 13 of the child abduction Convention. In order to assess the exact influence that the Regulation might have on the implementation of the 1980 Convention, one needs to keep in mind, that a decision refusing the return of the Child on the grounds of Article 13 of the Convention is still quite exceptional. Statistics for 2008 show that only 15 % of the procedures for return were rejected and that, among these non-return orders, 34 % are based on those grounds.36 The object of Article 11 (4) of the Regulation is to strengthen this strict interpretation of 42 Article 13 (b) of the Convention by forbidding the court of the State addressed to refuse the return of the child if adequate arrangements have been made to secure the protection of the child after his or her return. In many cases, it seems that even though the return of the child constitutes a grave risk for the child, a return order can nevertheless be issued if some practical arrangements are taken to protect him on his return.37 To this effect, and especially among Common Law countries, creative solutions have been adopted by courts to facilitate the return of the child at risk (undertakings, safe harbour orders …).38 The impact of those measures is of great importance in practice, and judicial cooperation has been very active and favoured by the Permanent Bureau of the Hague Conference39 in order to facilitate the return of the child.

35

36

37

38

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On the interpretation of Article 13 (1) (b), see P. Beaumont and P. McEleavy, The Hague Convention on International Child Abduction, p. 135 et seq. Permanent Bureau of the Hague Conference, “A Statistical Analysis of applications made in 2008 under the Hague Conference of 25 October 1980 on the civil aspects of international child abduction”, Prel. Doc. N° 8, May 2011, downloadable at http://www.hcch.net. For example in France, see Cass. Civ. 1e, 20 October 2010, n°08-21.161, RJPF January 2011, 27, obs. F. Eudier; Cass. Civ. 1e, 20 mars 2013, n°12-19.382, D. 2013, 1515, concl. J-P. Jean; D. 2013, 1520, note A. Boiché. On which see Beaumont and McEleavy, The Hague Convention on International Child Abduction, p. 156 et seq. and H. Fulchiron (ed.), Conflit familial, déplacements d’enfants et coopération judiciaire internationale en Europe, Université Jean-Moulin, Lyon III, 2003, p. 458. P. Lortie, “Practical mechanisms for facilitating direct international judicial communications in the context of the Hague Convention of 25 October 1980 on the civil aspects of international child abduction”, Prel. Doc. N° 6, August 2002. This international judicial cooperation is also facilitated by a “Judge’s newsletter” edited by the permanent bureau. All those documents are downloadable at http://www.hcch. net.

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43 Article 11 (4) aims to take into consideration those measures found in Article 13 of the

Convention. Therefore, the implementation of this provision could have two effects. The first one is to “encourage a more proactive approach by applicants and the authorities in requesting States to address any concerns which might exist”.40 The second one is to strengthen judicial cooperation among courts and Central authorities of the Member States within the European judicial network in civil and commercial matters. 44 To this end, as it is stated in Recital 25 of the Regulation, 45 “Central Authorities shall participate in the European Judicial Network in civil and com-

mercial matters created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters”.41 46 From now on, the mutual trust among Member States opposes the functioning of Article 13

of the Convention as soon as the State of origin takes measures for the protection of the child after his/her return. However, the mere possibility of those measures is not enough since, as explained in the practice guide of the Regulation, “it must be established that the authorities of the Member State of origin have taken concrete measures to protect the child in question”.42 To assess whether those measures are sufficient to ensure a safe return for the child, cooperation between Central Authorities, organised by Articles 53 et seq. of the Regulation, is of great importance. The Proposal for a new Regulation stresses this need of cooperation between the Member States, either with the assistance of Central Authorities or through the European Judicial Network.43 47 As sometimes remarked,44 Article 11 (4) could act as a strong incentive for peaceful solu-

tions, since it clearly favours an early organisation of the practical conditions ensuring the protection of the child upon his return. Article 11 (4) is therefore consistent with the whole project of the child abduction regime set up by the Regulation, which clearly tries to use the specific framework of judicial and administrative cooperation in Europe to ensure as prompt and peaceful return of the child as possible. Of course, the efficiency of such a policy greatly depends on the efficiency of this cooperative framework, which is still difficult to assess in practice. 48 Finally, one must insist on the fact that Article 11 (4) can only be used when there is a risk for

the safety of the child pursuant to Article 13 b of the Convention. Where no such risk exists, then the absence of measures taken in the State of origin cannot justify the refusal of the return. It has to be clearly understood that the aim of Article 11 (4) of the Regulation is to limit the main exception to the return of the child under the 1980 Convention, i.e. the possibility to refuse the return when there is a risk for the safety of the child. Article 13 of the Convention is an exception to the general rule, an exception which is in turn limited by 40

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P. McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?”, JPrIL, vol. 1, (2005), p. 5, at 26. OJ L 174, 27.6.2001, p. 25. Practice guide (fn. 11), p. 32. See Article 25 (1) of the Proposal. H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 234.

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Article 11 (4) of the Regulation. Therefore, Article 11 (4) cannot be read as a general rule on the return procedure, and should be used only in the context of Article 13. VI. Paragraph (5) This provision of the Regulation guarantees a fundamental right of the person who reques- 49 ted the return of the child: the right to be heard. Although the importance of the principle is uncontested, the reason justifying its addition to the Regulation could be challenged, since the right of the plaintiff to be heard seems already guaranteed by international texts. Particularly, the right to a fair trial of Article 6 ECHR, as interpreted by the European Court of Human Rights, already ensures the efficiency of the right to be heard. It could be said, therefore, that the exact legal impact of Article 11 (5) will probably be limited. It might be that repeating such a rule guarantees its international recognition.45 In civil and 50 commercial matters, ever since the well known Krombach decision of the ECJ,46 the substance of Article 6 ECHR has been included in public policy clauses justifying the nonrecognition of a decision of a Member State. It is more than likely that such an approach will be followed in the context of family disputes. Therefore, ensuring the respect for the fundamental right of the plaintiff might be a way of ensuring the possibility of international recognition. However, although convincing for matters of parental responsibility, this interpretation 51 might leave room for doubts when it comes to international child abduction. In any case, whether or not the plaintiff has been heard, if a non-return order is delivered by the requested court, the courts of origin can, in any case, decide to order the return of the child, pursuant to Article 11 (8). This return order issued in the State of Origin will always supersede the non-return order delivered in the requested State, and will not need exequatur, nor any specific procedure, to be enforced in the requested State, pursuant to Article 42 (see infra). Therefore, considerations of international recognition of the non-return order delivered in the requested State are of little importance, since in any case, the courts of origin can still adopt the decision they wish. Therefore, the exact legal need for Article 11 (5) seems to be rather unclear. If the person 52 requesting the return of the child has not been given the possibility to be heard by the requested court, and yet this court has refused the return of the child, then this decision would probably be considered a violation of Article 6 ECHR; but it would not have any influence on the possibility that the court of origin order the return of the child. The impact of Article 11 (5) on the return system seems therefore very slight, even though, once again, the principle of the necessity of hearing the person who requested the return remains absolutely uncontested. In any case, the exact wording of Article 11 (5) remains rather vague, since it imposes only the “opportunity to be heard”, which does not imply that the person requesting the return will necessarily be heard. It has also to be pointed out that the

45

46

See this interpretation in H. Fulchiron, “La lutte contre les enlèvements d’enfants”, in: H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 235. ECJ, 28 March 2003, C-7/98, Rec. I-1935.

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term “heard” should not be interpreted restrictively, since written testimony seems to be enough to satisfy the rule. 53 In practice, the hearing must occur quickly, given the strict six-weeks time limit set forth by

Article 11 (3). To this effect, the Commission, in its Practice guide,47 reiterates that the possibilities opened by the evidence Regulation48 could be used. The court of the requested State could therefore ask a court of another Member State to hear the person requesting the return of the Child, or, more generally, to take any evidence that it considers necessary. As the Practice guides underlines, “the use of video-conference and tele-conference, which is proposed in Article 10 (4) of the evidence Regulation, could be particularly useful to take evidence in these cases”.49 VII. Paragraph (6) 54 As noted, the Regulation has adopted a fundamentally different balance on the question of

the return of the child than the 1980 Convention, the most significant effect of this shift being the ability of the courts of origin to order the return of the child, pursuant to Article 11 (8). This primacy of the courts of the State of origin of the child requires a particularly intense cooperation between the courts of the requested State and the courts of the State of origin, which is organised by Article 11 (6) and 11 (7).50 The objective of this cooperation is devoted to the general objective of the child abduction provisions of the Regulation: limiting as much as possible the exceptions to the return of the child. 55 The transmission of documents under Article 11 (6) takes place when a non-return order

pursuant to Article 13 of the 1980 Convention is issued. This wording indicates that Article 11 (6) is broader in scope than Article 11 (4), which is limited to non-return orders issued pursuant to Article 13 (b) of the Convention. This extension, although not very difficult to understand, could lead to some difficulties,51 particularly if the return has been refused because the child objected to it (Article 13 (2) of the Convention). In that situation, if the return is ordered, notwithstanding the objections of the child, the authorities of the State of refuge could find it very difficult to enforce such a decision. It is made very clear from the Regulation that the decision rendered in the State of origin should prevail. However, the respect for the fundamental rights of the child being at stake, a certain reluctance of the authorities of the requested courts is likely. In such a situation, not much can be done, and the commentator cannot but insist on the general policy of mutual trust between Member States, which would imply that, even though the child objected to his return, the decision has 47 48

49 50

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Practice guide (fn. 11), p. 41. R. 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters, OJ L 174, 27 June 2001, p. 1. It has to be added that, contrary to Brussels I Regulation, the terms “civil and commercial matters” in the evidence Regulation include family matters. Practice guide (fn. 11), p. 41. For a theoretical interpretation of this cooperation duty, see B. Ancel/H. Muir Watt, “L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis”, Rev. Crit. DIP. 2005, 569, at 598. Pointed out and developed by H. Fulchiron in “La lutte contre les enlèvements d’enfants”, in: H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 245.

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been made in the State of the original habitual residence in compliance with his best interests. The fact that two Member States may take a different view on the question of that best interests is in itself of no consequence, since the Regulation organises the primacy of one view (the one taken in the State of the original habitual residence) over the other (the one taken in the State of refuge). It has to be added that, in any case, to issue an enforceable order for the return of the child, the courts of the State of origin have to allow the child the opportunity to be heard again and must take into account the reasons underlying the non-return order (Article 42). Although extended to all grounds of non-return raised by Article 13 of the 1980 Convention, 56 Article 11 (6) does not apply to the other grounds of non-return permitted by the Convention: Article 12 and Article 20. Article 12 provides for specific non-return orders after one year. As it has been seen (see supra, Article 10), in that situation, and provided that some specific conditions are met, the courts of the State of refuge can acquire jurisdiction on the merits. It is true that, even after the passing of one year and after the specific conditions of Article 10 of the Regulation are met, a return procedure could be initiated by the left-behind parent. In that situation it could even be possible that a return order is issued, either by the courts of the State of origin or by the courts of the requested State. It has to be stressed, though, that this situation is quite rare in practice, subject to discussion52 and, in any case, does not seem to require the same degree of emergency justifying the very short transmission delay set forth by Article 11 (6). It is clear that this provision is not designed to fit this situation. Article 20 of the Convention accepts that the requested State may refuse the return of the 57 child when such a return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”. It is hoped that this Article, which is not of great importance in the practice of the 1980 Convention,53 will not tend to arise amongst Member States, which share a solid common block of values and are all parties to the European Convention on Human Rights. This common institutional framework shows that hypothetical cases in which the return of the child is refused on such a ground are to be rare. Should they, however, occur, for example because of a different interpretation of the fundamental procedural rights of the child, of the leftbehind parent or of the abductor, then Article 11 (6) would not be applicable, meaning that the non-return order will not be necessarily transmitted to the authorities of the State of origin. This solution is certainly regrettable. The use of Article 20 would be evidence of a very important difference in the fundamental policies of the two Member States involved, and the whole communication process organised by Article 11 (6) would certainly help to reduce these differences and, perhaps, could resolve some misunderstandings. Inapplicability of this provision blocks one means of cooperation for reasons that do not appear clear. However, once again, hopefully Article 20 of the Convention will be sparingly used between 52

53

See Beaumont/McEleavy, The Hague Convention on International Child Abduction, p. 209, fn. 44, remarking that “in practice few difficulties have arisen given that where settlements has not been found, the children involved have been of a very young age”, and suggesting that “courts should become more receptive to the effect of a long-term placement on a child”. See Beaumont/McEleavy, The Hague Convention on International Child Abduction, p. 172: “it should perhaps be viewed with no little irony that the provision which caused such difficulty during the course of the XIVth Session has now nearly faded without trace”.

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Member States, and general cooperation organised by chapter IV of the Regulation will still be possible. 58 The list of the documents that need to be transmitted is open-ended. The non-return order

and a transcript of the hearing before the courts are of course of crucial importance, but the requested court can transmit any document that helped him make his decision or that might influence the court of the State of origin. The decision of the number and the nature of the documents to be transmitted is left to the requested court, which should try to convince the court of origin that its non-return order was justified and should not be reversed.54 Efficiency of the international cooperation will largely depend on the completeness of this transmission of documents. 59 Once the decision on which documents are to be transmitted is made, the court issuing the

non-return order can transmit them either directly or through its Central Authority to either the court having jurisdiction or to the Central Authority of the State of origin. The possibilities are left as open as possible in order to fit the habitual practice taking place under the 1980 Convention. Therefore, transmission through Central Authorities should be favoured in States where they have a pre-eminent role, whereas direct transmission from court to court should be favoured where Central Authority has a less important role.55 However, it seems clear that, in the European Community context, there is a strong tendency to favour direct communication between courts. This tendency is clearly reflected in the practice guide, which only tackles direct communication and does not give any guidance on transmissions through Central Authorities.56 The ECJ has stated that “it is for the Member State where the child was habitually resident immediately before the removal to determine, with due regard to the objectives of the Regulation, which court has jurisdiction to rule on the issue of the return of the child, after an order on non-return has been issued in the Member State to which the child was removed”.57 The determination of the court having jurisdiction can lead to some hesitation, since the court in the requested State can be ignorant of the specific judicial organisation of the State of origin. In that case, the European Community has developed a useful tool, the judicial atlas,58 which provides information on the judicial systems of the Member States. Of course, the Central Authorities can also assist the court in finding the competent court.59

54 55

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Practice guide (fn.11), p. 37. See, for example, the different approaches taken by France and the UK as to the role played by the Central Authorities: A. Richez-Pons/N. Bollon, “La France et les enlèvements internationaux d’enfants” and J. Rey/F. Toulieux, “Le Royaume-Uni et les enlèvements internationaux d’enfants”, in: H. Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, Bruylant, 2004, p. 160 et 179. However, some Member States, like France, still resist such a direct communication. As explained by Mr. Fulchiron, French legal system clearly favours communication through Central Authorities (H. Fulchiron, in “La lutte contre les enlèvements d’enfants”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 223, at 248). ECJ, 9 January 2015, Bradbrooke, C-498/14 PPU, pt. 43. http://europa.eu.int/comm/justice_home/judicialatlascivil/html/index.htm. Practice guide (fn.11), p. 36.

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Article 11 (6) provides for very strict time limits: the documents must be transmitted “im- 60 mediately” and, regardless the path of transmission, must reach the court in the State of origin “within one month”. This very short time period is, once again, proof of the strength of the policy of the authors of the Regulation to expedite the litigation and to try to obtain a definite resolution to the abduction litigation within a very short time period. Such an imperative seems particularly important in situations dealt with by Article 11 (6) where a non-return order has been issued in the State to which the child has been removed and could be challenged in the State of origin. The very existence of a decision in the former State, which could lead the parties to false expectations, makes it even more imperative to settle the case quickly. As pointed out in the practice guide, no translation is necessary.60 The most appropriate 61 resolution is a pragmatic one; practical agreements are preferred to formal procedural requirements. This interpretation, still subject to national procedural laws, which can sometimes be more demanding than hoped by the Commission, shows that, once again, in abduction cases, practical and informal cooperation is strongly favoured over formal and procedural solutions. VIII. Paragraph (7) Article 11 (7) provides for the procedure to be followed in the State of origin. It dictates a 62 specific procedure, which is divided into two steps. The first step is the transmission to the parties of the information received by the court. It 63 could very well be, since the court of the State of origin still has jurisdiction, that the parties have already seized this court. In that situation, a specific transfer of information is not necessary, and the national rules of procedure will control as in normal proceedings between the parties before the court. But a specific transfer of information is necessary if the parties, which have asked for the return before a court in the country to which the child has been displaced, have not yet acted in the country of the original habitual residence. In that situation, the parties need to obtain all the information available in order to react. Some questions might arise about the exact determination of “the parties”. Ex hypothesis, 64 there is no jurisdiction seized in the country of the State of origin. Therefore, there is no party, in the technical procedural meaning of this term. It is submitted, in order to give maximum effect to this provision, that the best solution would be to transmit the information to any “person, institution or other body having rights of custody”, in the meaning of Article 11 (1), which in turn comes from Article 8 of the 1980 Convention. Article 11 (6) should not be limited to the plaintiff, who actually lodged an action before the court of the State of refuge, but rather extended to all persons who could lodge such an action. The aim of this provision is to allow for a quick reaction in the State of the State of origin, and therefore this reaction is not limited to the person who actually reacted in the State of abduction. It has to be remarked that no particular time limit has been adopted for the transmission of 65 information to the parties. This is a little surprising since the objective of the provision is to obtain a reaction from the court of the State of the original habitual residence as quickly as 60

Practice guide (fn. 11), p. 37.

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possible. It is quite clear however that this information should be transmitted as soon as possible, the whole procedure being of an expeditious nature; perhaps a strict time limit should have been adopted. 66 The second step is the potential reaction of the left-behind parent. He or she is given a three

month period within which to make submissions to the court. This time limit is a reminder of the importance of obtaining the quickest decision possible, in order to definitely settle the situation of the child. 67 If the parties do not make any submission, then the court “shall close the case”. In that

situation, the litigation in the State of the State of origin is over, and the court of the State of refuge is now competent for any future dispute. This solution derives from Article 10 (b) (iii), which gives jurisdiction to the court of the new habitual residence of the child when the case has been closed by the court of the State of origin. As noted, however, a gap between the end of the proceedings in the State of origin and the acquiring of jurisdiction in the new habitual residence can occur (see supra, Article 10 (b) (iii)). 68 If they do make submissions, then the court can be seized. However, the procedural ques-

tions are left open by this provision, which is rather vague about the technical nature of the seisure of the court, inviting the parties to make submissions “so that the court can examine the question of custody”. Such a wording technically does not give the parties the opportunity to seise a court by their submission alone. These procedural questions (e.g. form of the act of seisure, delays), are therefore left to national procedural laws that are applicable as usual within the broad outlines provided by the Regulation. This is how the sentence “in accordance with national laws” in Article 11 (7) should be understood. In accordance with this provision, the ECJ considers that the Member State where the child was habitually resident immediately before the removal can allocate to a specialised court the jurisdiction to examine questions of return or custody within Articles 11 (6) to (8), even where proceedings on the substance of parental responsibility with respect to the child have already and separately, been brought before a court of this same State.61 69 Finally, the court of the original habitual residence is not seized on the non-return decision,

meaning that what is asked from it is not to confirm or reverse this decision. Being the court with jurisdiction on the merits, it is seized to “examine the question of custody of the child”. It is seized of the entire litigation concerning the child and not only of the litigation concerning the possible return. The abduction and the non-return order will be of great importance in making the decision, but, in itself, the seisure of the court of the State of origin is of greater extent. 70 Therefore, the court seized can make any decision on the merits it considers best, in accord-

ance with the applicable law. Such a decision can imply that the child must return to the State of his State of origin. In that situation, the court can order the return of the child, which would then lead to a conflicting decision with the non-return order given in the State to which the child has been removed.

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IX. Paragraph (8) This paragraph is one of the most innovative provisions of the Regulation and might have an 71 important impact on the implementation of the 1980 Convention among Member States. It cannot be read alone, however, and must be read in connection with chapter III, section IV of the Regulation and specifically with Article 42. The rationale of this provision is easy to understand and perfectly consistent with the 72 general policy underlying Articles 10 and 11. As has been seen, the whole objective of the Regulation on international child abduction is to strengthen the return mechanism and to try to limit the possibilities opened by the 1980 Convention to refuse to order the return of the child. One important way of ensuring this objective is to keep the jurisdiction of the courts of the State of the original habitual residence of the child (Article 10) and to ensure that the parties are informed and can react to a possible non-return order (Articles 11). Nevertheless, the general principle of res judicata makes it very difficult, when a non-return 73 order has been rendered by a court in one country, to challenge it in another State. Particularly complicated enforcement questions will arise, since even if the courts of the original habitual residence order the return, there is very little chance that this decision would have any effect in the State where the child is physically present, which is the State in which the courts have refused the return. In that situation, therefore, judicial cooperation is blocked and, to a certain extent, it can be said that the last words are those of the courts of the State to which the child has been displaced. The aim of Article 11 (8) of the Regulation is to achieve the exact opposite result, by which 74 the final decision will be that of the courts of the original habitual residence. Being the courts having jurisdiction over the merits, they can make a decision on custody that implies the return of the child and issue a return order to this effect. The legal effect of Article 11 (8) is to affirm that this return order will be enforced in the State to which the child has been removed. Technically, this solution can only be achieved by modifying two important rules. The first 75 one is the res judicata of the non-return order of the court of the State of displacement. Being a decision of a Member State, such an order should be entitled to the automatic recognition mechanism organised by Chap. III of the Regulation. Article 11 (8) provides for the contrary position, however, whereby the non-return order will basically have no effect in the State of the original habitual residence if the court of that State decides so. The second, and even more fundamental rule, is the automatic enforceability of the return 76 order of the court of the original habitual residence. This mechanism is technically detailed in Article 42, and will be addressed in detail under that Article (see infra, art. 42). It is enough to say here that, in practice, Article 11 (8) prescribes what some authors have called a “fasttrack procedure”,62 by which the return order, rendered notwithstanding a non-return order pursuant to Article 13 of the 1980 Convention, will nevertheless be enforceable in the State 62

P. McEleavy, “The new child abduction regime […]”,JPrIL, vol. 1, April 2005, p. 5,at 25 et seq.; B. Ancel/H. Muir Watt, “L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis”, p. 600.

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to which the child has been taken. Any judgment ordering the return of the child rendered in the State of the child’s original habitual residence will supersede the non-return order given in another Member State. This provision goes far beyond the cooperation prescribed by the 1980 Convention and should strongly favour the return of the child to the country in which he/she was habitually resident before the wrongful removal. 77 Article 11 (8) is probably the most radical change in the scheme of the 1980 Convention and

the best proof that the Brussels IIbis Regulation is indeed a major change from that which has been achieved up until now. Article 12: Prorogation of jurisdiction 1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seized, and is in the superior interests of the child. 2. The jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final; (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final; (c) the proceedings referred to in (a) and (b) have come to an end for another reason. 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seized and is in the best interests of the child. 4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.

Bibliography B. Ancel/H.Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569

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K. Boele-Woelki/C. Gonzáles Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia

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Chapter II: Jurisdiction F. Colienne/S. Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: Fulchiron/Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223

I. II.

Preliminary remarks . . . . . . . . . . . . . . . . . . . . . . . . 1 Divorce court 1. Paragraph (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 a) Sub-paragraph (a) . . . . . . . . . . . . . . . . . . . . . . . 29 b) Sub-paragraph (b) . . . . . . . . . . . . . . . . . . . . . . . 31

H. Fulchiron/C. Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Patris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law, Vol. 1, No. 1, 2005, p. 5 D. Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015. 821.

III.

2. Paragraph (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Other courts 1. Paragraph (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 2. Paragraph (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

I. Preliminary remarks The general principle underlying Art. 12 is to establish an alternative forum for parental 1 responsibility proceedings. In matters of divorce, the general idea is to draw a compromise between the tendency to 2 favour the jurisdiction of the court of the habitual residence of the child and the need to ensure at least some concentration of the various legal questions concerning the child that could be raised at the time of the divorce before the court seized of the divorce. Important arguments of procedural economy favour the opportunity for the court seized of 3 the divorce to be able to rule on parental responsibility.1 It is very often at the moment of the divorce that questions concerning the children will arise and, thus, accepting the jurisdiction of the divorce court concentrates both questions of divorce and parental responsibility before the same court, even if it is not the court of the habitual residence of the child. In comparative law, the conjunction of divorce and parental responsibility is very common.2

1

2

See the discussion in E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, at 135. For example, in France (outside the scope of the 1961 Convention): Cass. Civ. 1e, 6 janvier 1987, Rev. Crit. DIP. 1988, 337, note Y. Lequette, JDI, 1988, 435, note J-M. Jacquet; in Belgium, see Art. 33, Belgium code of private international law; in the UK, see Dicey/Morris, The Conflict of laws, Sweet and Maxwell, 15th ed., 2012, rule 106 and Family Law Act 1986.

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4 Such a solution, though, has been strongly challenged in the Hague. Article 15 of the 1961

Hague Convention on the protection of minors3 allowed a specific reservation by contracting States in order to maintain the opportunity for the court seized of the divorce to take measures to protect the minor’s person or property. But almost every State that made the reservation withdrew it, meaning that the divorce court no longer had jurisdiction to take measures to protect the minors. Therefore, a strong tendency favouring a strict separation between divorce and parental responsibility was appearing in the international arena. The same solution was initially envisaged by the Special Commission that negotiated the 1996 Convention, but the Members States of the European Union eventually opposed such a radical disjunction of the matrimonial and parental responsibility proceedings because of the European Union Convention on matrimonial matters under negotiation at the time. The disparity between the two draft instruments was a case of great concern, and some European Community Member States insisted on the opening of a special rule accepting jurisdiction of the court seized of the divorce over parental responsibility.4 5 However, there was concern that joining matrimonial and parental responsibility proceed-

ings could lead to some difficulties. Particularly, some concerns were raised that the acceptance of the competing jurisdiction of the divorce court – which is not, ex hypothesis, open to children whose parents are not divorced – might be found discriminatory.5 6 Finally, it should be noted that such a broad jurisdiction of the divorce court could lead to

certain temporal difficulties: the jurisdiction of the divorce court could continue after the divorce is final, e.g. for periodic re-evaluation of a maintenance allowance. In that case, allowing the divorce court to rule on the child’s situation would also risk giving jurisdiction to a court which does not have close connections with that child. Those arguments eventually led to the adoption in the 1996 Convention of a specific jurisdictional rule that allows the divorce court to hear the parental responsibility case, but only under certain specific circumstances. 7 This solution has been followed in the European Union, in Article 3 of the first version of the

Regulation.6 The solution adopted at the time, has, however, evolved in subsequent versions of the provision, which has become the present Article 12. The evolution from Article 3 of Brussels II to Article 12 of Brussels IIbis reflects the important evolution of the material scope of the Regulation, which now includes general rules on parental responsibility. Under the original Brussels II system, Article 3 was understood as an extension of the divorce forum, which was widened to include parental responsibility. On the contrary, under the present Brussels IIbis system, Article 12 is as an exception to the basic jurisdictional rule on parental responsibility, which is that the courts of the habitual residence of the child have jurisdiction. This analysis explains why Article 12 does not deal only with divorce cases, but more largely with all the possible exceptions to Article 8. 3

4

5

6

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Convention concernant la compétence des autorités et la loi applicable en matière de protection des mineurs, 5 October 1961. See P. Lagarde, “Explanatory Report on the 1996 Convention”, Proceedings of the 18th session, SDU Publisher, The Hague, 1998, p. 533, at. 557 (hereinafter Lagarde Report), p. 563. A. Bucher, “La révision de la Convention de La Haye sur la protection des mineurs”, Famille et droit, Mélanges B. Schnyder, éd. Universitaires, Fribourg 1995, 61. R. 1347/2000 of 29 May 2000, OJ. 30 June 2000, n° L. 160, p. 19.

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The reasons for these exceptions are quite different. If procedural economy, and the neces- 8 sity of trying to concentrate different litigation before the same court, can explain paragraphs 1 and 2, flexibility, consideration of the interests of the child and respect for a certain form of party autonomy are better justifications for paragraphs 3 and 4. In any case, the jurisdictional grounds created by Article 12, are competing and not exclu- 9 sive, meaning that the courts of the State of the habitual residence of the child are not deprived of their jurisdiction in the circumstances described by Article 12, like divorce. This of course could lead to some difficulty, since several courts could be seized simultaneously of a dispute over parental responsibility. This solution, however, is not new in Europe, which has known the difficulty of parallel procedures for a long time and has developed specific instruments to fight against it. The main mechanism is lis pendens, and is dealt with in Article 19 of the Regulation (see infra). II. Divorce court 1. Paragraph (1) Article 12 (1) gives to the courts seized of an application for divorce, legal separation or 10 marriage annulment, jurisdiction over matters relating to parental responsibility that are connected with the application for divorce, legal separation, or marriage annulment. The principle laid down in Article 12 (1) is directly inspired by Article 10 (1) of the 1996 11 Convention, as are the connecting factors and the conditions described in sub-paragraphs (a) and (b), as was Article 3 of the original Brussels II Regulation.7 However, some important differences among these provisions are noticeable and need to be 12 examined in close detail. Firstly, the Regulation specifically gives jurisdiction to the courts seized of the divorce, 13 whereas the Convention only allows Contracting States whose internal law acknowledges this jurisdiction to use it.8 The difference is important since, if such a rule does not exist in some Member States, as appeared to be the case,9 then the Regulation creates a completely new ground of jurisdiction over parental responsibility. Another peculiarity of Article 12 (1) concerns the grounds of jurisdiction over divorce and 14 the geographical scope of application of the rule. This places new Article 12 (1) in opposition both to the solution adopted in the 1996 Hague Convention and to Article 3 of the original Brussels II Regulation.

7

8 9

For a close analysis of the relationship between these two provisions, see E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, p. 141. Lagarde Report (fn. 4), p. 563. For example, in States where the 1961 Convention was applicable, when the reservation had not been taken or had been withdrawn.

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15 The 1996 Convention does not provide for jurisdictional rules on divorce. Therefore, Article

10 of the Convention only refers to “the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce”, leaving to national rules the exact content of those rules.

16 The original Brussels II Regulation provides for an extension of the divorce jurisdiction laid

down in Article 2 only when the child is habitually resident in the State of the court seized of the divorce (Article 3–1) or, with some additional conditions, when the child is resident in another Member State (Article 3–2). But the court seized of the divorce had no competence if the child was habitually resident in a third State. This provision was adopted to coordinate the solution with that of the 1996 Hague Convention.10 Such a solution was to be accepted, since the original Brussels II Regulation did not embrace parental responsibility as a whole, but only as a consequence of the divorce. It was important, therefore, to avoid an excessive disturbance of the Hague Children Convention. 17 The solution adopted in the new Regulation is very different since the material scope of the

Regulation has been considerably enlarged, in order to include both parental responsibility and international child abduction. Therefore, the question of the coordination between the Regulation and the 1996 Hague Convention is posed on a much larger scale. This new situation led to a much broader and quite different scope of application, since it concerns all children, whatever their habitual residence. 18 To understand perfectly the new geographical scope of this rule, reference has to be made to

Article 61 of the Regulation, which organises the relationship between the 1996 Convention and the Regulation (for a thorough analysis of this Article, see infra). From this provision, three different situations can be distinguished. Firstly, if the child is habitually resident in a Member State, the Regulation will prevail, and the jurisdiction of the divorce court over parental responsibility will be determined by Article 12 of the Regulation. Secondly, if the child is habitually resident in a non-Member State that is party to the Hague Convention, the jurisdiction of the divorce court over parental responsibility will be determined by Article 10 of that Convention, which will prevail. Thirdly, if the child is habitually resident in a nonMember State which is not party to the Hague Convention, the jurisdiction of the divorce court over parental responsibility will be determined by Article 12 of the Regulation. This solution seems rather complex, but such a complexity is probably inevitable, since the Regulation and the 1996 Hague Convention have a common material scope, and the application of each text should, therefore, be precisely distinguished. These different legal regimes should not, in most situations, lead to different practical solutions, since Article 12 of the Regulation and 10 of the Hague Convention are very close, albeit not identical. 19 Moreover, the rule is applicable to every child over whom one of the spouses has parental

responsibility and not only to common children of the couple, as was required by Article 3 of the original Brussels II Regulation. This last solution has the important advantage of concentrating the litigation over all the siblings before the court seized of the divorce, reducing the risk of divergent solutions. 10

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See for example H. Gaudemet-Tallon, “Le règlement n°1347/2000 du Conseil du 29 mai 2000: compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs”, JDI 2001, p. 381, at 394.

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The application of the rule in Article 12 (1), however, is not without limits. The foremost one 20 concerns jurisdiction: to be extended to parental responsibility, the jurisdiction over the divorce must lie in Article 3 of the Regulation, which provides specific grounds for jurisdiction over divorce cases. This solution implies that no other ground for divorce than the one found in Article 3 can be extended to embrace parental responsibility. Particularly, Article 7 of the Regulation (see supra), which allows for the use of national rules of jurisdiction where no court of a Member State has jurisdiction pursuant to Article 3, cannot be extended to embrace parental responsibility. This solution seems acceptable. Because of Article 6 (for a thorough analysis of this provi- 21 sion, see supra), national grounds of jurisdiction can only be used when the defendant is neither habitually resident in a Member State nor a national of a Member State (or domiciled, in the United Kingdom or Ireland). The possible exercise of its jurisdiction over divorce by the court of a Member State concerns, therefore, only cases which have weak connections to the European territory. A classic example is Article 14 of the French Civil Code, which allows a French national to sue before French courts. This rule will be available only if the defendant is both a national of a third State and habitually resident in a third State. In that case, it would indeed seem rather unwise to extend this already exorbitant jurisdiction to parental responsibility. If the child is habitually resident in a Member State, then the courts of that Member State are certainly better placed to decide over parental responsibility. If the child is habitually resident in a third State, then it seems better to leave the regular rules of jurisdiction over parental responsibility to be applied (which could lead to the jurisdiction of the court of a Member State pursuant to Article 12 (3), see infra). In any case, the links between the divorce case and the court seized seem too weak to lead to automatic jurisdiction over parental responsibility. Consequently, the divorce court will hear the parental responsibility questions only when 22 the link between the parental responsibility case and the divorce court are considered strong enough. Sufficiently strong connecting factors are the grounds for jurisdiction over the divorce listed in Article 3 of the Regulation. It should be noted, though, that Article 3 has often been criticised as being too broad, thus leaving open the opportunity for undesirable forum shopping (for the analysis of Article 3, see supra). For this reason, it is sometimes remarked that Article 3 should be modified, maybe by including the possibility for the parties to choose their tribunal. The European Commission has launched an important study on the question.11 Should Article 3 be modified, Article 12 (1) would be modified as well. This jurisdiction over divorce and parental responsibility will generally extend to mainte- 23 nance obligations. As stated in Recital (11) of the Regulation: “(t)he courts having jurisdiction under this Regulation will generally have jurisdiction to rule on 24 maintenance obligations by application of Article 5 (2) of Council Regulation No. 44/2001”.

It has to be stressed however that such reference to Article 5 (2) of Brussels I Regulation is 25 now obsolete, since a specific Regulation about matters of maintenance obligations has 11

European Commission, “Green book on applicable law and jurisdiction in divorce matters”, 14 March 2005, COM (2005) 82 Final, point 3.5 et seq.

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entered into force in June 2011.12 Article 5(2) of Brussels I Regulation has been replaced by very similar provisions (Article 3 (b) and (d)), in order to maintain the policy settled in Recital (11) and to allow to extend jurisdiction over divorce or parental responsibility to maintenance obligations. 26 Article 3 (c) and (d) states: “In matters relating to maintenance obligations in Member States, jurisdiction shall lie with: 26a The court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or 26b The court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.” 26c These two provisions, that set up a distinction between jurisdiction over divorce and juris-

diction over parental responsibility, are directly inspired by the Brussels IIbis Regulation, which has precisely adopted that approach. 27 It implies that the court of a Member State seized of a divorce proceedings under Article 3 of

the Brussels IIbis Regulation shall also have jurisdiction to hear the dispute of maintenance involving the spouses, and only them. However, as this court does not have general jurisdiction, this does not imply an automatic extension to parental responsibility issues.13 27a Moreover, Article 3 (d) of the Maintenance Obligations Regulation provides that the court

of a Member State which has jurisdiction to hear a case of parental responsibility under Brussels IIbis Regulation shall also have jurisdiction over maintenance matters concerning the children. 27b It has to be stressed that the extension of jurisdiction based on Article 3 (d) can be allowed to

any court of a Member State which has jurisdiction to hear a case of parental responsibility, under Article 8, but also under Article 12 or 15. 27c Therefore, the court of a Member State that has jurisdiction to entertain a divorce proceed-

ing under Article 3 of the Brussels IIbis Regulation could also have jurisdiction to hear the question of parental responsibility pursuant to Article 12 (1) of the Regulation and then the question of maintenance obligation, pursuant to Article 3 (d) of the Maintenance Obligations Regulation. Such a solution is indeed very desirable, since it leads to the seisure of one court for the whole of the family litigation, which would risk incoherence should it be split into various parts. 12

13

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Regulation n°4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. ECJ, 16 July 2015, C-184/14, RJPF Nov. 2011, p. 31, note S. Godechot-Patris.

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This is the only possible extension of the jurisdiction of the court seized to children main- 27d tenance. In other words, the court which has jurisdiction to entertain divorce proceedings under Article 3 of the Brussels IIbis Regulation could hear a case on children maintenance only if its jurisdiction had been firstly extended to parental responsibility under Article 12 (1) of Brussels IIbis Regulation. Such an extension is possible only under three different conditions, which are listed in sub- 28 paragraphs (a) and (b). Those conditions, which need some further explanations, are taken from Article 10 of the Hague Convention, which shows that the drafters of Article 12 (1) took great care in harmonising the conditions required by the Regulation and the functioning of the 1996 Hague Convention. Ensuring harmony of international texts that have the same subject matter is certainly worth trying, even if it seems inevitable that some divergences in interpretation appear. One can therefore approve this concurrent wording of the Regulation and of the Hague Convention. a) Sub-paragraph (a) The first condition is that at least one of the spouses has parental responsibility over the 29 child. The rationale for this is not difficult to understand and seems to be sound. If neither of the parents has parental responsibility, then there is no reason for extending the divorce jurisdiction to parental responsibility. If neither spouse has parental responsibility, it is most likely because an authority has so 30 decided, usually an authority of the habitual residence of the child, since in the vast majority of legal systems in Europe, both parents are holders of parental responsibility. It would therefore be an unwarranted intrusion by a foreign court into the matters before the court seized of the divorce, should that foreign court attempt to give jurisdiction to the divorce court over matters of parental responsibility when it would be unable to justify such an extension of jurisdiction by a close link between the divorce and parental responsibility, when, precisely this link has been severed by the withdrawal of parental responsibility from the parents of the child. b) Sub-paragraph (b) Sub-paragraph (b) provides for two different conditions: agreement of the holders of pa- 31 rental responsibility and the superior interests of the child. The necessity of an agreement between the holders of parental responsibility is probably, in 32 practice, the condition which is going to be the most important under Article 12 (1) and can indeed be a major limitation on the extension of the jurisdiction of the court seized of the divorce. The rationale for this condition comes from the fact that the jurisdiction of the court seized of the divorce over parental responsibility is an exception to the general rule of jurisdiction. Therefore, it needs to be specifically justified. It has been suggested that the procedural economy realised by joining the divorce case and the parental responsibility case was not enough if the holders of the parental responsibility did not agree on the jurisdiction of the court. Therefore, agreement of the holders of parental responsibility is a necessary supplementary condition for extending the jurisdiction of the court seized of the divorce. Actually, it is arguable that, more than the mere procedural requirement of concentrating 33 the litigation before the same court, the main justification is the agreement of the parties. As

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will be seen, agreement of the holders of parental responsibility can justify almost any exception to the general rule giving jurisdiction to the courts of the habitual residence of the child. This solution is a major policy difference with the Hague Convention, which leaves less room for party autonomy. 34 However, in divorce cases, the probability of such an agreement will largely depend on the

psychological and human relationship between the spouses or between the holders of parental responsibility. Due to the sometimes conflicting relationships arising from a divorce action, there will probably be an important number of situations where no agreement at all can be found between the spouses or between the holders of the parental responsibility. Such a situation could change if the possibility would be offered to the spouses to choose their judge in the divorce proceedings, but the recast of the Brussels IIbis Regulation did not follow this way. 35 The objective of the agreement, however, is limited, since it is concentrated on jurisdiction.

The holders of parental responsibility do not need to agree on the substance of the measures necessary to ensure the safety of the child. They only need to agree that the court seized of the divorce can also hear the question of parental responsibility. 35a The form of the agreement is a major issue of Article 12 (1). The agreement must be express

or unequivocal, as it has to be very clear to give jurisdiction over parental responsibility to the court seized of divorce. The moment for the spouses to agree is when the court is seized.14 The question may arise as to whether the absence of challenge of jurisdiction by the defendant is sufficient to establish an agreement to the prorogation. National courts of the Member States have given different answers to that issue,15 and an interpretation from the ECJ would therefore be useful. Several arguments taken from the text of the Regulation itself may be put forward in favour of a restrictive interpretation. First, no provision in the Brussels IIbis Regulation gives any ground of jurisdiction based on the mere appearance of the defendant before the court seized. This is an important difference to the Brussels I and Ibis Regulations,16 which leave room for the appearance of the defendant who does not contest the jurisdiction. Second, the courts of the Regulation States have to examine their jurisdiction under Article 17 of the Regulation.17 That is the reason why the Practice guide states that “the judge should determine whether, at the time the court is seized, all holders of parental responsibility accept the jurisdiction of the divorce court, whether by formal acceptance or unequivocal conduct”.18 This means that, even if the defendant does not contest the juris14

15

16 17

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The Proposal for a new Regulation specifies that the spouses have to agree “at the latest at the time the court is seized or where the law of [the] Member State so provides, during those proceedings”: Proposal for a COUNCIL REGULATION on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM(2016) 411. See for example, in France, Cass. 1e Civ., 13 May 2015, n°13-21.827, which considered that a spouse who acknowledged the jurisdiction over the divorce, does not accept in consequence the jurisdiction over parental responsibility. For an opposite solution, see in Spain, TS 16 December 2015, n°710/2015 which held that the defendant who did not contest the jurisdiction of the Spanish court had tacitly agreed its jurisdiction over parental responsibility. Respectively Article 24 and Article 26 (1). For an analysis of this provision, see infra.

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diction, the court seized must check whether the parties agree to the prorogation of jurisdiction over parental responsibility.19 In any case, if the parties do not agree, the court is deprived of its jurisdiction and cannot 36 ignore this opposition. This means that, if the child is not habitually resident in the European Union, it is possible no European court can take measures of protection. The only basis on which jurisdiction could be extended to the court of a Member State would lie in Article 12 (3), which also implies, as it will be seen, that the parties agree on jurisdiction, even if this agreement could lead to the designation of another court other than the divorce court. The last condition is the consideration of the superior interests of the child. This considera- 37 tion leaves room for important judicial discretion, since the task to evaluate the superior interests will lie with the court.20 It is still very difficult to evaluate the importance of this condition. One can only remark that it will probably be used quite rarely, since it seems difficult to imagine a situation where all the other conditions were present, but the court nonetheless declines to exercise jurisdiction over parental responsibility. If the court has jurisdiction over the case, if at least one of the parents is the holder of parental responsibility and if all holders have agreed on the jurisdiction of the court, it is difficult to imagine that the exercise of jurisdiction over parental responsibility would not be in the superior interests of the child.21 The situation is nonetheless possible and future case law will probably produce some examples where the superior interests of the child, as interpreted by the divorce court, result in the court declining to exercise jurisdiction over parental responsibility. 2. Paragraph (2) The extension of the jurisdiction of the court seized of a divorce to parental responsibility is 38 temporary in nature. The reason justifying the concentration of the jurisdiction is that it is sound that the court seized of the divorce has the opportunity to evaluate the whole situation, and therefore be seized as well of the questions of parental responsibility (and maintenance). However, these reasons cease to be persuasive for all the litigation that can occur concerning the practical implementation of the judicial decision after the divorce has been granted. For this post-divorce litigation, which is very often concentrated on patrimonial issues, the link with parental responsibility is far weaker and does not justify any further extension of the original jurisdiction of the seized court. Moreover, this provision makes it very clear that the litigation over parental responsibility cannot be considered post-divorce litigation. It is therefore impossible to ask the divorce court to order a new measure of protection concerning the child. The only competent court after the divorce has been granted is the court of the habitual residence of the child, subject to Article 12 (3). 18 19

20

21

Practice guide, p. 16. For this opinion, see N. Joubert, “Autorité parentale, Conflits de juridictions”, JurisClasseur internat., Fasc. 549-20, n°40; A. Devers, Droit de la famille, Dalloz Action 2016–2017, Dalloz 7e ed., (Dir. P. Murat), n°532-72. Comp. Lagarde Report (fn. 4), p. 565, for whom “the conformity of this jurisdiction to the best interests of the child is to be judged sovereignly by the court which is seized of the request for divorce”. For the same opinion, see S. Corneloup, “Les règles de compétence relatives à la responsabilité parentale”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Paris, Dalloz, 2005, p. 69, at. 78, fn 36.

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39 This solution, once again, is identical to the one adopted in the 1996 Hague Convention.

Article 12 (2) is however a little bit more specific than Article 10 (2) of the Convention, insofar as it describes more precisely the circumstances ending the jurisdiction of the divorce court. 40 The first hypothetical, Article 12 (2) (a), is the most common: the decision sought has been

obtained, whether positive or negative, and is final. By final, one means that the decision is not subject to appeal in its State. This concept is left to national procedural laws, each legal system giving its own definition of a final decision, even though some help, if needed, can be found in the case law concerning the Brussels Convention or the Brussels I Regulation.22 41 The second hypothetical case is described in Article 12 (2) (b) and, even if it seems sound

and reasonable, it suffers from very poor drafting. The general idea seems to be that it is possible that a divorce has become final before the court seized has given its decision on parental responsibility. This situation is quite likely to occur in systems where the court renders a first decision on the divorce and then a second decision, later, on the consequences of the divorce, including parental responsibility. Therefore, it would have been absurd to block the jurisdiction on parental responsibility only because of this internal organisation of the divorce procedure. 42 This approach seems quite obvious: actually, it seems so obvious that one doubts the ne-

cessity of a specific provision on this point, which has not been dealt with in the 1996 Hague Convention. Moreover, the drafting is rather unclear since sub-paragraph (b) does not specify that “proceedings in relation to parental responsibility are still pending” before the courts seized of the divorce, nor is it made explicit that the “judgment in these proceedings”, which “has become final”, is the judgement given by that court. 43 There is room, therefore, for what may be a complete misunderstanding of the rule because

of the wording of the text. It could be said that this rule refers to parallel procedures, where litigation on parental responsibility is addressed before the courts of two different States, for example, before the State where the child is habitually resident and before the State where the divorce is under way. Article 12 (2) (b) could therefore be understood as a rule depriving the court seized of the divorce of its jurisdiction when the court seized only of the parental responsibility has reached a final decision. Once again, this is obviously not the intended meaning of the rule: provisions on recognition and enforcement are dealt with in chapter III, and are completely independent of jurisdictional questions. A clearer drafting would have been, however, far better than the ambiguous text eventually adopted. 44 Lastly, the third hypothetical case, Article 12 (2) (c), refers to all the situations which, in

internal procedural law, can lead to the end of the proceedings. Several reasons can be envisioned, for example, withdrawal or death of a party. All procedural laws have such rules, and it was important therefore to provide for termination of jurisdiction on parental responsibility. After the litigation has come to an end, the situation, as far as parental responsibility is concerned, returns to normal. The court of the State of the habitual resi-

22

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See the hesitations concerning the definition of what is an “ordinary appeal” in the sense of Article 30 and 38 of the Brussels Convention: Industrial Diamond Supplies v. Riva, (Case 43/77) (1977), ECR Rec. 2175.

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Article 12

dence of the child will therefore be the only competent court, subject to some exceptions, among which is Article 12 (3). III. Other courts 1. Paragraph (3) Article 12 (3) is an important and new provision in this Regulation and is fairly original, 45 since the rule which is established does not have any equivalent in the 1996 Convention. The general idea is to provide for a general exception to the normal jurisdictional rules, allowing for any court of a Member State to have jurisdiction in relation to parental responsibility if some conditions are fulfilled. Three conditions are required in order to confer jurisdiction: the existence of a substantial connection between the child and the court seized, the agreement of the parties to the proceedings and the consideration of the best interests of the child. These conditions show that the nature of the rule is to organise a limited form of party autonomy in the proceedings concerning parental responsibility. The intrusion of party autonomy into family matters is indeed a very important and new approach, very different from the one adopted in the 1996 Convention, which does not leave much room for party autonomy. This extension of party autonomy in family matters is not radically new, at least in choice of 46 law matters. It is, for example, well known that the 1978 Hague Convention on the law applicable to matrimonial property regimes and the 1989 Hague Convention on the law applicable to succession to the estate of deceased persons23 leave room for party autonomy, allowing a limited possibility to choose the applicable law. However, such a possibility of choice of law was quite rare for non-patrimonial questions and even more exceptional for jurisdictional purposes. In most Member States, it seems that choice of court agreements are either forbidden or very limited in family matters24 and family law falls outside the scope of the recent Hague Convention on choice of court agreements.25 The reason for which party autonomy has been accepted is the promotion of a peaceful agreement between the parties26 The search for a peaceful agreement and the growing influence of party autonomy in family 47 law are indeed an increasing tendency in family matters. In its Green Book on divorce, the Commission proposed enlarging the possibilities for parties to choose both their court and applicable law27 Since then, three Regulations have been adopted in family matters, which

23 24

25 26

27

The text of these Conventions can be found on the Web site of the Hague Conference: www.hcch.net. In France, see for example P. Mayer/V. Heuzé, Droit International Privé, Montchrestien, 11th ed., Paris, 2014, p. 217. In the UK, see Dicey/Morris, The Conflict of laws, Sweet and Maxwell, 15th ed., London, 2012, rule 39,rule 106; in Belgium, see Articles 6 and 7 of the Code of private international law; in Italy, see Article 4–3 of the Law on private international law. See the text at: http://www.hcch.net/index_en.php?act=conventions.text&cid=98. See the Commission’s explanation in its Proposal for a council Regulation which led to the new Brussels II Regulation, COM (2002) 222 Final 2, of 17 May 2002. European Commission, “Green book on applicable law and jurisdiction in divorce matters”, 14 March 2005, COM (2005) 82 Final, at points 3.3 and 3.6.

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leave room for party autonomy, either to choose applicable law (in divorce cases),28 or to choose both applicable law and court (in Maintenance obligations matters29 and in Succession matters).30 However, an important obstacle hinders the development of party autonomy in family matters, which is the generally mandatory nature of family laws. This is the reason why party autonomy is generally accepted only under strict conditions and allowing only for a limited choice. 48 Usually, the solution adopted is to allow only for a limited choice between clearly identified

connecting factors.31 The solution adopted in the Regulation is more open-ended, since the requirement is only that the child has a “substantial connection” with the State of the court seized. The provision gives examples of these substantial connections: habitual residence of one of the holders of parental responsibility or nationality of the child. But in essence, any other connection could be discussed before the court. It seems difficult to assess the practical effect of this provision, since it leaves much room for discussion over other connecting factors (e.g. nationality of one holder of parental responsibility or related action) before the court seized. 49 The wording of Article 12 (3) raises some questions when it states that a court of a Member

State shall have jurisdiction “in proceedings other than those referred to in paragraph 1”. It has been said that an extremely restrictive interpretation of this provision should be adopted, providing jurisdiction by virtue of Article 12 (3) only in limited situations.32 Particularly, it is argued that Article 12 (3) should be used only as an extension of the divorce forum, when the jurisdiction for divorce is not grounded on Article 3, but on Article 7 (i.e. residual jurisdiction, based on national laws, see supra for a complete analysis). Another interpretation would be to require that the court extending its jurisdiction is at least already seized of a related action. One important argument favouring such a restrictive interpretation of Article 12 (3) is that, otherwise, the transfer mechanism of Article 15 would be jeopardised.33 However, it can be argued that the specific court cooperation set forth in Article 15 is limited to particular situations where the court of the habitual residence is seized and does not wish to exercise its own jurisdiction. The typical situation of Article 12 (3) might be different since it does not require any court cooperation. Moreover, if Article 15 does not require any

28

29

30

31

32

33

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Council Regulation (EU) n°1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. Regulation n°4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. See also the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Regulation (EU) n°650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. See, for example, Article 5 of the Rome III Regulation which allows for the designation of the law of a State where the spouses are habitually resident, or where the spouses were last habitually resident, in so far as one of them still resides there, or the law of the State of nationality of either spouse, or the law of the forum. On this interpretation, see B. Ancel/H. Muir Watt, “L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis”, Rev. Crit. DIP. 2005. 569, at 588. B. Ancel/H. Muir Watt, Rev. Crit. DIP. 2005. 569, at 588.

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Article 12

agreement from the parties, Article 12 (3) needs the parties to agree in order to prorogate the jurisdiction of the court seized. It must be remarked that the wording of Article 12 (3) allows for a much more extensive 50 interpretation of the jurisdictional rule, giving the court the possibility to have an extremely comprehensive understanding of its own jurisdiction, as long as the parties agree on it.34 The ECJ has recently approved this resolution. As regards particularly whether the court can extend its jurisdiction only if it has been already seized of a related action, the ECJ has given a negative response. It has decided that the jurisdiction of a court of a Member State which is not that of the child’s habitual residence can be established under Article 12 (3) “even where no other proceedings are pending before the court chosen”.35 In the same way, the Proposal of recast of the Brussels IIbis Regulation brings a substantial simplification and clarification to the text.36 The possibility of such an extensive interpretation raises some doubts about the practical 50a effect of the limits set forth in Article 12 (3) (a), since any connection can be considered “substantial” by the court. In any case, one must wait for significant case law before knowing exactly the impact of the provision. It might be that, in the near future, the European Court of Justice specifies how the “substantial connection” should be understood. However, the extended jurisdiction allocated to a court of a Member State under Article 12 (3), is given for a limited time: the jurisdiction disappears indeed when the judgement rendered by this court become final.37 The extension of jurisdiction has to be accepted expressly or in an unequivocal manner by 50b the parties.38 It means that there is no agreement where the defendant in a first proceeding pleads the lack of jurisdiction of that court even though he brings subsequently a second set of proceedings before the same court.39 However, the fact that the legal representative of the defendant has not pleaded the lack of jurisdiction of the seized court can not be interpreted as an express or unequivocal acceptation of the jurisdiction by the parties. The ECJ adopted this solution in a case where the legal representative of the defendant had been appointed by the seized court on its own motion in view of the impossibility of serving the document

34

35 36

37

38 39

E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, at 132 and A. Quiñones Escamez, “Nuevas normas europeas sobre responsabilidad parental y sustracciones de menores”, Rev. Jur. SEPIN (Persona y familia), 2003, p. 19, at. 26. ECJ, 12 November 2014, C-656/13, Rev. Crit. DIP 2015. 667, note E. Gallant. The Article 10 (3) of the Proposal removes indeed the reference to “proceedings other than those refered to in paragraph 1”. ECJ, 1 October 2014, C-436/13, Procédures January 2015, comm. 12, note C. Nourissat; Rev. Crit. DIP 2016. 174, note M-C. de Lambertye-Autrand; Europe 2015. 39, obs. L. Idot; Gaz. Pal. 2014, n° 302 à 303, p. 13, obs. É. Viganotti. This difficulty was discussed within the recast of the Brussels IIbis Regulation, in order to make clear the articulation between the Articles 8, 9 and 12(3). See the Article 10 (4) of the Proposal. For the same discussion within the Article 12(1), see supra. ECJ, 12 November 2014, C-656/13, Rev. Crit. DIP 2015. 667, note E. Gallant.

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instituting the proceedings on the defendant.40 Regretfully, this discussion over the behaviour of the defendant in the procedure, be it under Article 12 (1) or (3), was not resolved by the recast of the Brussels IIbis Regulation.41 51 The last condition is that the exercise of the jurisdiction must be in the best interests of the

child. Such a condition allows important judicial discretion, as in Article 12 (1). However, it might very well be that this test will prove to be more important than in divorce jurisdiction. As noted, extension of the divorce jurisdiction to parental responsibility seems like a reasonable and uncontested objective, and therefore, it seems difficult to envision cases where the exercise of this jurisdiction will not be in the best interests of the child. The rule set up by Article 12 (3) is very different, since it allows for the jurisdiction of any court, without any consideration of procedural convenience. Therefore, the use of judicial discretion to refuse to hear the case might have an important role to play, equivalent to a specific forum non conveniens exception. The court will be able to consider that, although the child has a substantial connection with the forum, it nevertheless does not appear wise to exercise its jurisdiction based upon the best interests of the child.42 52 This analysis shows how different the Brussels IIbis and the Brussels Ibis Regulation are

when it comes to judicial discretion. In the Brussels Ibis Regulation, there is almost no room for judicial discretion, even when the court intends to decline its jurisdiction in favour of the courts of a third State.43 This very strict position is certainly not the one taken by the drafters of the Brussels IIbis Regulation, who have welcomed the forum non conveniens mechanism, even if it is under specific conditions, as will be seen during the analysis of Article 15 of the Regulation infra. 53 In any case, the use of this escape clause can be important considering the exact wording of

Article 12 (3) (b), which states that those who must accept the jurisdiction are the “parties to the proceedings”. As generally remarked,44 this wording implies that, if one of the holders of parental responsibility is not party to the proceedings, his agreement will not be requested. On the other hand, if there are parties to the proceedings who are not holders of parental responsibility (grandparents, stepparents for example), their agreement will be required. This wording is necessary because of the procedural nature of a court agreement. But the risk is that one holder of parental responsibility, not party to the litigation, might be surprised by the decision of a court, before which he might not be called and which might be far away from his own habitual residence. This provision for judicial discretion, therefore, also tries to 40

41 42

43 44

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ECJ, 21 October 2015, Vasilka Ivanova Gogova c/Ilia Dimitrov Iliev, C-215/15, RJPF March 2016, p. 42, note S. Godechot-Patris; Procédures, January 2016, p. 29, note C. Nourissat; D. 2016. 1045, obs. H. Gaudemet-Tallon/F. Jault-Seseke; RTD eur. 2015. 803, obs. V. Égea; S. Corneloup, “Actualité du règlement Brussells IIbis”, Rev. crit. DIP 2016. 479. See the Art. 10 of the Proposal of recast. See for example, in the UK, B v. B [2012] EWHC 1924 (Fam.), [2013] 2 F.L.R. 1145; it is not in the best interests of the children to allow proceedings to be brought in England under Art. 12 (3) since neither they nor their parents were habitually resident in the jurisdiction. Owusu v. Jackson, (Case C-281/02) (2005) ECR Rec. I-1383. See for example S. Corneloup, “Les règles de compétence relatives à la responsabilité parentale”, in H. Fulchiron/C. Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Paris, Dalloz, 2005, p. 69, at. 80.

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Article 12

guarantee that the court will determine that it is not ill-placed for deciding over parental responsibility. Moreover, it can be argued that this best interests of the child test could be used to open a bridge between Article 12 (3) and Article 15. It could be said that, where the court considers that international cooperation is preferred to a simple extension of its jurisdiction, it could refuse to hear the case on the basis of the best interests of the child test, suggesting that the holders of parental responsibility should seise the normally competent court. Such an interpretation would allow for a flexible and extensive interpretation of Article 12 (3), without jeopardising the functioning of Article 15. In that situation, therefore, it seems that the judicial discretion provided by the best interests 54 of the child test is welcomed. Of course, as always, when it comes to judicial discretion, the assessment of the practical effects of the provision will depend on national case law. Common interpretation of this forum non conveniens exception by the ECJ will certainly be welcomed in that matter. Lastly, it should be remarked that the English version of the Regulation states that the court 55 seized has to determine that the jurisdiction is “in the best interests of the child”. This wording differs from the one used just a few paragraphs above, since Article 12 (1) (b) refers to the “superior interests of the child”. It seems, however, that the different wording does not imply any legal difference, and results only from a lack of attention of the drafters (or the translators) of the Regulation. In its Practice guide, the Commission affirms that “no distinction was intended by the drafters” between those two versions of the text and points out that “versions of the Regulation in other languages employ an identical wording in both paragraphs”.45 It is to be strongly regretted that such faulty drafting, which allows unnecessary judicial discussion, has not been corrected during the course of negotiations. 2. Paragraph (4) Lastly, Article 12 (4) provides for a rule whose legal content seems to be rather obscure. As 56 explained in the Practice guide of the European Commission, this provision has to be read in connection with Article 61, which concerns the relationship between the Regulation and the 1996 Convention46 (for a complete analysis of this provision, see infra). It results from Article 61 that, as far as jurisdiction is concerned, the Regulation will prevail over the Convention when the child is habitually resident in a Member State. On the other hand, the Convention will prevail over the Regulation when the child is habitually resident in a non-Member State which is party to the Convention. Therefore, and since a jurisdictional rule based on party autonomy does not exist in the 1996 Convention, courts of Member States will not have jurisdiction in relation to parental responsibility if the child is habitually resident in a non-Member State party to the Convention, even if the parties to the proceedings agree on this jurisdiction. However, this rule leaves open the situation where the child is habitually resident in a non- 57 Member State not party to the 1996 Convention. In that situation, it is clear from Article 12 45

46

European Commission, Practice Guide for the application of the new Brussels II Regulation, June 2005, p. 42., http://europa.eu.int/comm/justice_home/fsj/civil/parents/fsj_civil_recognition_parents_en.htm (hereinafter Practice guide), p. 17. Practice Guide (fn. 26), p. 45.

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(3) that a court of a Member State can hear proceedings over a child who has a substantial connection with this State, although habitually resident in a third State, if the parties to the proceedings agree so. 58 Article 12 (4) only adds to that solution a legal presumption, by which the exercise of this

jurisdiction is to be considered in the child’s best interests, “in particular if it is found impossible to hold proceedings in the State in question”. The exact meaning of this sentence is not absolutely clear, and needs some clarification.

59 The effect of the provision is to leave room for judicial discretion, as the court will have the

possibility to refuse to exercise its jurisdiction if it considers it to be contrary to the best interests of the child. Article 12 (4) seems to reduce this judicial discretion, since under this Article the court will be deemed to have considered that the child’s best interests are fulfilled when the child is living in a third and non-Contracting State. It seems however that one can be a little sceptical about the exact nature of the rule. 60 First of all, the reason for this presumption does not seem clear. The Regulation gives the

example of where the proceedings in the State of the habitual residence are impossible, which example is not exhaustive, as the Practice guide makes clear.47 In this situation, it can indeed be considered sound to allow for jurisdiction of the court of a Member State. Nevertheless, the logic of the rule is quite unclear: is the presumption constructed only because the child is habitually resident in a third State, or is it forged for very specific situations like the impossibility of any proceedings in the State of habitual residence? In the first situation, the presumption would be based on the fact that the State of habitual residence of the child is neither a Member State nor a Contracting State. Therefore, no specific cooperation is available, perhaps justifying an extensive understanding of a rule giving jurisdiction to a Member State court. In the second situation, on the contrary, the presumption would be based on specific elements, showing that objective difficulties might occur in the State of the habitual residence, justifying the intervention of the court of a Member State. As one can see, the rationale underlying those two interpretations is quite different. However, the wording of Article 12 (4) seems to foreclose choosing one interpretation over the other. 61 Secondly, it does not seem that the court is completely deprived of its judicial discretion,

since the word used, “deemed”, does not imply that the court could not take the opposite view. As a presumption, the approach can be reversed, if justified, and therefore the court could very well refuse to exercise its jurisdiction if it determined that such refusal were in the best interests of the child. Such a situation could, for example, happen if a parent and a stepparent apply for the exercise of parental rights, without any notification being given to the other parent, living with the child in a third State. Actually, as far as children living in third States are concerned, a flexible approach to jurisdiction seems particularly useful, and the judicial discretion opened by the best interests of the child test should be kept. In that situation, the exact impact of the presumption is still to be determined and may, eventually be found very weak.

62 As one can see, the exact legal meaning of Article 12 (4) leaves room for important judicial

interpretation, and some guidance from the ECJ will probably be necessary to determine the 47

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Practice Guide (fn 26), p. 45.

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Chapter II: Jurisdiction

exact meaning of the rule. Such a lack of clarity for an important provision of the Regulation seems regrettable. Article 13: Jurisdiction based on the child’s presence 1. Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction. 2. Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

Bibliography B. Ancel/H. Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569 K. Boele-Woelki/C. González Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia F. Colienne/S. Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: H. Fulchiron/C. Nourissat (dir.), Le nou-

veau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223 H. Fulchiron/Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Patris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law, Vol. 1, No. 1, 2005, p. 5 D. Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015. 821.

I. Introduction Article 13 is directly inspired by Article 6 of the 1996 Hague Convention and deals with two 1 situations that are close, albeit different. The hypotheticals dealt with by Article 13 are close in the sense that it is sometimes either impossible or irrelevant to use habitual residence as a connecting factor. In these cases, another connection has to be found, which will be the mere presence of the child in the territory of a State, considered to be a sufficient factor to give jurisdiction to the court of that State. However, the situations dealt with by both paragraphs of Article 13 are different, since the reason for the unavailability of the habitual residence will differ in these two situations.

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II. Paragraph (1) 2 In the rare hypothetical case where no habitual residence of the child can be established (e.g.

in the case of a recently abandoned child), another ground of jurisdiction needs to be found. It is of course possible that the court of a Member State has jurisdiction on the basis of Article 12 (1), which is based on the extension of jurisdiction over matrimonial matters to parental responsibility hearings. Moreover, it is also possible that the parties to the proceedings agree on a court in a Member State with which the child has a substantial connection, allowing that court to hear the case by virtue of Article 12 (3). 3 However, it might very well be that no matrimonial proceedings are involved in the situation

or that the parties cannot agree on a court. In that situation, the risk is that no court can hear the case, denying access to justice to the plaintiff, if any, and putting at risk the child’s future. The court of the State where the child is present will in that case have jurisdiction, playing the role of a “jurisdiction of necessity”.1 The courts of the State where the child is present are given jurisdiction only because no other court seems to be able to hear the case. 4 It has to be stressed that, in essence, this ground of jurisdiction is of temporary nature. The

complete absence of a habitual residence is an exceptional situation, which is due to end when the child has finally settled in a State. When the link between the child and a Member State is strong enough to qualify as a habitual residence, then the necessity for any specific jurisdiction grounded on the mere presence of the child disappears, and the courts are deprived of the jurisdiction they were given by virtue of Article 13 (1). The same solution is to be followed if the child acquires a habitual residence in a third State. In that situation, a European tribunal could hear parental responsibility proceedings only on the basis of a specific ground of jurisdiction, like Article 12. 5 One needs also to remark that this jurisdiction is independent from any emergency con-

sideration. Emergency allows for specific grounds of jurisdiction, which are dealt with in Article 20 of the Regulation, allowing the Member State to take the provisional measures available under their law. It is sometimes estimated that the most appropriate forum for taking provisional or protective measures is the court of the State where the child is present, as shown in Article 11 of the 1996 Hague Convention. However, as explained below (see infra, Article 20), the justifications for such jurisdiction are of a completely different nature, and, particularly, do not specifically concern the hypothetical case where, as in Article 13 (1), the child’s habitual residence cannot be found. 6 Lastly, it is also important to remark that Article 13 (1) is not applicable to the case where the

child’s habitual residence is situated outside the European Union. Indeed, in that case, the child cannot be considered to have no habitual residence and, therefore, Article 13 does not give jurisdiction to the court of the Member State in which this child is present. In that situation, if no Member State’s court has jurisdiction on the basis of Article 12, then only national rules of international jurisdiction will apply, on the basis of Article 14 (see infra, Article 14). If those rules do not give jurisdiction to the court of a Member State, then no European tribunal can hear the case. 1

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See P. Lagarde, “Explanatory Report on the 1996 Convention”, Proceedings of the 18th session, SDU Publisher, The Hague, 1998, p. 533, at. 557 (hereinafter Lagarde Report) p. 555.

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Article 14

III. Paragraph (2) The sentence “refugee children or children internationally displaced because of disturbances 7 occurring in their country”, is once again directly inspired by the Hague experience and taken from Article 6 (1) of the 1996 Convention, which in turn took it from a Recommendation adopted by a Special Commission of the Hague Conference on 21 October 1994 concerning the application to these children of the Convention of 29 May 1993 on intercountry adoption.2 It concerns children, often separated from their parents, who have left their country of origin 8 and who need specific protection in the State to which they have fled. Ex hypothesis, the jurisdiction of the court of the habitual residence is not available any more, since the children have severed the link attaching them to their State of origin. However, they have often not been in the State to which they have moved for sufficient time to acquire habitual residence in that State. Therefore, a specific connecting factor has to be found, justifying the use of the child’s mere presence as a jurisdictional ground. The court of the State where the child is present is therefore given jurisdiction to organise his 9 protection and can, for example, designate for him a legal representative, who will apply for asylum or give him to foster care. Once again, emergency is not a ground of jurisdiction. The possibility of supporting the 10 exercise of the jurisdiction based on the need for urgent or protective measures was discussed and eventually rejected in The Hague,3 and the same approach has been followed by the Regulation. The authorities of the State where the child is present are therefore to be considered the replacement for the authorities of the child’s habitual residence, replacing them for the whole organisation of the protection of the child. The provisional nature of this jurisdiction will, however, appear in the fact that, once the 11 child’s protection is organised, and once the child has settled in a Member State, acquiring there habitual residence, the court of that Member State will thereafter have jurisdiction, depriving the former court of the child’s presence of jurisdiction. Of course, if the child settles in a third country, then he falls outside the scope of the Regulation, unless another ground of jurisdiction, like Article 12, can be found. Article 14: Residual jurisdiction Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.

2 3

Lagarde Report (fn.1 ), p. 555. Lagarde Report, (fn.1 ), p. 555.

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Bibliography B. Ancel/H. Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569 K. Boele-Woelki/C. González Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia F. Colienne/S. Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: H. Fulchiron/C. Nourissat (dir.), Le nou-

veau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223 H. Fulchiron/Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Patris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law, Vol. 1, No. 1, 2005, p. 5 D. Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015. 821.

1 Article 14 has to be read together with Articles 6 and 7 of the Regulation. These three

provisions provide for a solution which organises an original hierarchy between community and national grounds of jurisdiction. Moreover, the solution laid down is very different from the one adopted in the Brussels I Regulation, which must be briefly described. 2 In the Brussels I and Ibis Regulations, the main principle is that the community grounds of

jurisdiction are only to be used when the case is closely linked to the European Union. This link is, in most situations, the domicile of the defendant, meaning that when the defendant is domiciled in the European Union, the jurisdiction will be decided according to the Brussels I and Ibis rules, and when the defendant is not domiciled in the European Union, national rules will be applicable (Article 4/Article 6). Exceptions to that general rule are only found whenever there are exclusive grounds of jurisdiction, which will apply whatever the domicile of the litigants (Article 22 Brussels I Regulation and Articles 24 and 25 Brussels Ibis Regulation) or when one party, be it plaintiff or defendant, is domiciled in the EU (Article 23 Brussels I Regulation). This solution has been developed and confirmed by the European Court of Justice in its Josi case.1 In Brussels Ibis Regulation, such exception to the general rule has been extended to proceedings brought by consumers or employees (Articles 18–1 and 20–1). 3 The Brussels IIbis Regulation has a very different perspective. The general idea behind

Articles 6, 7 and 14 is that no connection with the European Union is necessary to determine whether community or national rules of international jurisdiction are applicable. The community rules are always applicable and always supersede national rules. If the connecting factor used by the applicable jurisdictional provision is located within the European Union, 1

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Group Josi, (C-412/98) (2000), ECR Rec. I-5925.

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the jurisdiction will always be determined by application of the Brussels IIbis relevant provision. For example, if the child’s habitual residence is located in a Member State, jurisdiction of the court of that State for parental responsibility matters will always be found in Article 8. On the other hand, in the Brussels I and Ibis systems, when the courts of the place of performance of the obligation in question are located in a Member State, these courts will only determine their jurisdiction pursuant to Article 5–1 the Brussels I Regulation or 7–1 of the Brussels Ibis Regulation if, in addition, the defendant is domiciled in another Member State. If the defendant is domiciled in a third State, then the jurisdiction of the Member State will be determined by application of its national provisions, even though the connecting factor found in Article 5–1/7-1 is located in this Member State. This example shows that national rules of jurisdiction are almost eliminated from the community system laid down by the Brussels IIbis Regulation. However, national rules still have a residual role to play, explained in Articles 7 and 14, since 4 they will be available for the national courts when no court of a Member State has jurisdiction, i.e. when the connecting factor of the relevant jurisdictional rule is located outside the European Union. In that case, the court can decide its own jurisdiction by application of its national rules. This is particularly important for the exorbitant grounds of jurisdiction known in most 5 Member States, like, for example, the jurisdiction grounded on the nationality of the parties, which exists in France. Those exorbitant grounds of jurisdiction will be available when no other Member State court is granted jurisdiction by any of the provisions of the Brussels IIbis Regulation. Those exorbitant grounds of jurisdiction are now available to a court of a Member State to hear a case which, without it, would have to be brought before the courts of a third State. This establishes a very strict hierarchy between the “normal” European jurisdictional rules, which are to be found in the Brussels IIbis provisions and the “exorbitant” European rules, which are to be found in the various national systems, and may differ from one Member State to another. An important difference between Articles 6 and 7, on the one hand, and Article 14, on the 6 other, is that the possibility to use national jurisdictional rules is not limited by Article 14. This means that for parental responsibility cases, whatever the connecting factors of the situation are, the exorbitant grounds of jurisdiction can be used by national courts when no Member State tribunal can hear the case. For example, if the child’s habitual residence is located outside the European Union, French courts will have jurisdiction to hear a case on parental responsibility involving a French plaintiff and any defendant, be it a European citizen or one habitually resident in a Member State, in application of Article 14 of the French Civil Code. Such a solution is, to the contrary, impossible in matrimonial matters, since European citizens and European residents are protected from any form of national grounds of jurisdiction (Article 6). Another difference is to be found in the fact that there is no extension of the national 7 grounds of jurisdiction. For matrimonial matters, Article 7–2 allows for a European citizen habitually resident in another Member State to avail himself of the rules of jurisdiction applicable in the State where he is habitually resident. Thus, because of Article 14 of the French Civil Code, a German national habitually resident in France can file a divorce case against his American spouse living in Canada before a French court, if no other ground of

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jurisdiction is available. To the contrary, this extension is not permitted with regard to parental responsibility proceedings according to Article 14 of the Regulation. Therefore, jurisdictional rules based on nationality, like Article 14 of the French Civil Code, can only be used by French nationals. The conformity of such a solution to the general non-discrimination rule of Community law could, however, be challenged. 8 Finally, this national system of jurisdictional rules has been at least partially abandoned

since the 1996 Hague Convention has been ratified by the Member States. In that case, the jurisdictional rules of the Convention are applicable instead of the national rules, in cases where they require application, that is, mostly, when the child is habitually resident in a Contracting State.2 Article 15: Transfer to a court better placed to hear the case 1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. 2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court’s own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties. 3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seized; or (b) is the former habitual residence of the child; or (c) is the place of the child’s nationality; or (d) is the habitual residence of a holder of parental responsibility; or (e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property. 4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seized in accordance with paragraph 1.

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On the relationship between national rules of jurisdiction and conventional rules of the 1996 Convention, see the Lagarde Report, p. 601. For the relationship between the Regulation and the 1996 Convention, see infra, commentary of Article 61.

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If the courts are not seized by that time, the court which has been seized shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1 (a) or 1 (b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

Bibliography B. Ancel/H. Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, Rev. crit. DIP 2005. 569 K. Boele-Woelki/C. González Beilfuss (dir.), Brussels IIbis. Its Impact and Application in the Members States, 2007, Intersentia F. Colienne/S. Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles IIbis, RTD familial 2009. 351 E. Deflers/C. Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005. 7 A. Devers, Les enlèvements d’enfants et le règlement “Bruxelles IIbis”, in: Fulchiron (dir.), Les enlèvements d’enfants à travers les frontières, 2004, p. 33, Bruylant H. Fulchiron, La lutte contre les enlèvements d’enfants, in: H. Fulchiron/C. Nourissat (dir.), Le nou-

veau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 223 H. Fulchiron/Nourissat (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, 2005, p. 111, Dalloz E. Gallant, Règlement Bruxelles IIbis, Rép. Dalloz International, janvier 2013 S. Godechot-Patris/Y. Lequette, Mineur, Rép. dr. int. Dalloz P. McEleavy, The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?, Journal of Private International Law, Vol. 1, No. 1, 2005, pp. 5 D. Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015. 821.

Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . 1 Paragraph (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Sub-paragraph (a) . . . . . . . . . . . . . . . . . . . . . . . 15 2. Sub-paragraph (b) . . . . . . . . . . . . . . . . . . . . . . . 18 Paragraph (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Paragraph (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Sub-paragraph (a) . . . . . . . . . . . . . . . . . . . . . . . 27

2. Sub-paragraph (b) . . . . . . . . . . . . . . . . . . . . . . . 29 3. Sub-paragraph (c) . . . . . . . . . . . . . . . . . . . . . . . 30 4. Sub-paragraph (d) . . . . . . . . . . . . . . . . . . . . . . . 33 5. Sub-paragraph (e) . . . . . . . . . . . . . . . . . . . . . . . 34 V. Paragraph (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 VI. Paragraph (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 VII. Paragraph (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

I. II.

III. IV.

I. Preliminary Remarks Article 15 of the Regulation is perhaps one of the most remarkable provisions of the Regu- 1 lation, even though it is extremely difficult to evaluate its future practical importance. It provides a very original forum non conveniens, subject to strict conditions, which possibly opens a new form of judicial cooperation among European courts.

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2 Once again, the origin of this provision is the Hague experience, although the original texts,

Articles 8 and 9 of the 1996 Hague Convention, have been modified to take into account the close and specific judicial cooperation existing among European Union Member States.1 3 The general idea of this provision is to allow the transfer of a case from a Member State court

to another Member State court, when the court first seized considers that the other court is better placed to hear the case. This kind of judicial cooperation is indeed very original and definitely not usual in the European jurisdictional systems. In particular, it is in striking contrast with the Brussels I and Ibis systems, which not only do not allow discretionary judicial cooperation among Member States, but also do not leave room for discretionary judicial cooperation between Member States and third States, as recently affirmed by the European Court of Justice.2 This difference is even more striking when one looks at the reason justifying the exclusion of any form of judicial discretion. In the Owusu case, the ECJ considered that allowing national courts to use the forum non conveniens mechanism would put at risk the “principle of legal certainty”, since the forum non conveniens theory would “undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention”.3 To the contrary, Article 15 of the Brussels IIbis Regulation opens the door to broad judicial discretion. 4 This important legal difference between the two texts might be explained by two main

reasons. The first one is the subject matter of the texts. Article 15 allows for judicial discretion in parental responsibility matters, which is in a subject area where practical considerations of procedural convenience, especially for the child, seem to supersede most other considerations, particularly legal certainty. As the European Court of Justice has frequently repeated, legal certainty is a major objective in the Brussels I and Ibis systems, since the foreseeable nature of the jurisdictional rules is protective of the defendant, who needs to know in advance to which tribunal he/she can be called, in order to evaluate the risk taken, especially in contracts matters. To the contrary, as far as parental responsibility is concerned, the principal goal is proximity of the court seized with the child, which explains the major jurisdictional rule contained in Article 8. But it can appear sometimes that, for practical reasons, and especially considering the necessity of the enforcement of decisions, the seisure of another court would seem to better respect this procedural convenience and, therefore, better serve the superior interests of the child. These superior interests of the child, which are constantly referred to in every jurisdictional rule, can therefore supersede any rigid connecting factor, allowing for important judicial discretion and giving less weight to the necessities of predictability and legal certainty put forward by the European Court of Justice. 5 The other reason is that the forum non conveniens mechanism is organised directly at the

European level, under strict and specific conditions. These conditions strictly frame the use of the transfer mechanism and can be considered an answer to the objections of the European Court of Justice. In the Brussels I and Ibis systems, no transfer rule is provided. Therefore, no case transfer can occur between courts of two Member States. Such a case transfer could only take place between the Court of a Member State and the Court of a third State. 1

2 3

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See on this point E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, p. 123 et seq. Owusu v. Jackson, (Case C-281/02) (2005) ECR, Rec. I-1383. Owusu v. Jackson, points 38 and 41.

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The problem in that situation, which largely explains why the Court of Justice has refused the British forum non conveniens mechanism in its Owusu decision, is that such a mechanism would indeed undermine the Brussels I system, since the possibility to use judicial discretion would depend on the court designated by the jurisdictional rule: be it English, the possibility to stay the case would be open, be it French or German, the possibility would not be open. The effect of this jurisdictional provision (Article 2, in the Owusu case), would therefore depend upon the court seized. To the contrary, in the Brussels IIbis system, the possibility of case transfer is open to every national court, subject to strict conditions, and the transfer takes place directly from a Member State court to another Member State court. Harmonisation of such a transfer and of the conditions under which the transfer mechanism is used, guarantees a certain community uniformity (under the supervision of the European Court of Justice). Such uniformity fits well within the global functioning of the Brussels IIbis system. It can be said, therefore, that there is no policy inconstancy between the Owusu case and the Brussels IIbis provisions. It could very well be, however, that a future positive experience with this mechanism in family matters would be a strong incentive for introducing forum non conveniens between Member States in civil and commercial matters. II. Paragraph (1) Article 15 (1) provides the principle that will be detailed in the following paragraphs: the 6 possibility for a court seized to transfer the case to another court better placed. This possibility is offered “by way of exception”, which indicates that this transfer mechanism must not be used by the courts without a specific attention to the circumstances around the case.4 However, it could be counter-productive to interpret it in a too restrictive manner. In principle, this mechanism seems to be limited by Recital 13 of the Regulation, which 7 allows such a transfer only from the court initially seized, meaning that a second transfer cannot occur.5 The rule seems reasonable, since it would indeed be a great loss of time to accept multiple transfers of the parental responsibility proceedings. It is however regrettable, if indeed a strict interdiction was sought by the drafters, that this interdiction has not been clearly stated in the provision itself. Recitals provide for interpretation guidance, but are not in themselves legally binding. A clear cut solution could only be achieved, therefore, by including the rule in the provision itself. However, this discussion is probably very theoretical since, as will be seen, the transfer must be accepted by the designated court to be completed. A sub-transfer seems therefore highly unlikely to happen. Another and far more important principle laid down in Article 15 (1) is that this transfer can 8 be for the benefit of any Member State’s court. The provision states that this transfer should 4

5

EJC, 27 october 2016, Aff. C-428/15, Child and Family Agency c/J. D., RJPF january 2017, p. 42, obs. S. Godechot-Patris; Europe, december 2016, p. 46, note L. Idot. For example, see in Spain, a decision from the Supreme Court which refused to transfer the jurisdiction to a Belgian court, whereas the whole family was now living in Belgium. The refuse was based on the fact that a significant period of time had elapsed since the beginning of the proceedings and that the best interests of the child required a quick resolution of his situation: TS 7 July 2011, 496/2011, SP/SENT/639104. European Commission, Practice Guide for the application of the new Brussels II Regulation, June 2005, p. 42, http://europa.eu.int/comm/justice_home/fsj/civil/parents/fsj_civil_recognition_parents_en.htm (hereinafter Practice guide), p. 18.

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concern a court “with which the child has a particular connection”, and the exact nature of these connections is listed in paragraph (3). However, Article 15 (1) does not require that the designated court would otherwise have jurisdiction over the subject matter. Therefore, the transfer mechanism is not a mechanism allowing a competent court to transfer a case to another competent court, but a mechanism allowing a competent court to transfer a case to any Member State court, provided that the particular connection is identified. This analysis implies that Article 15 is not only a court cooperation provision, but contains also a jurisdictional rule. The effect of this rule is to give jurisdiction to any Member State court, providing there is a particular connection between the court and the child. 9 Article 15 (1) can therefore be analysed in connection with Article 12 (3) of the Regulation,

which also provides for a very open jurisdictional rule. The difference lies with the fact that Article 12 (3) relies on party autonomy, whereas Article 15 (1) relies on judicial cooperation. The bases of jurisdiction are therefore very different, but the main effect of both provisions is very similar: giving jurisdiction to a court that is not designated by any of the connecting factors of the Regulation. 10 The transfer mechanism is designed to work only between Member States courts. It must be

stressed, however, that Article 15 (1) has to be read in connection with Articles 8 and 9 of the 1996 Hague Convention, which also allow for the transfer of a case to a court better placed. The Hague Convention’s ratification process is now concluded since the treaty has been ratified by every Member States.6 It implies that a Member State court has either the opportunity to transfer the case to another Member State court pursuant to Article 15 (1) of the Regulation, or to a Contracting State pursuant to Article 8 and 9 of the Hague Children Convention. Transfer of a case to a court of a non-Member State that is not a party to the Hague Convention, is not allowed.7 11 Three conditions are required for the court seized to commence a transfer process. The first

one is that another court is better placed to hear the case; the second one is that such a transfer would be in the best interest of the child; and the third one is that the child must have a “particular connection” with the designated Member State. Those connections are listed in paragraph (3) of Article 15. 12 The first two conditions show that there is an important amount of judicial discretion

involved in the transfer mechanism.8 It is only when the court seized considers a transfer it necessary that it can occur, which is consistent with the basis of the forum non conveniens theory underlying the whole transfer process. This judicial discretion is strengthened by the fact that the court seized can transfer only part of the case. One possible example of such a situation would be the transfer of the part of a case concerning the child’s assets to the court of the Member State where the assets are located. It should be stressed, though, that such a partial transfer should be an exception, since it would imply a fragmentation of a single case and a risk of irreconcilable decisions that could undermine the best interests of the child.

6 7

8

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Italy was the last State to ratify the Hague Convention, which entered into force on the 1 January 2016. See Lagarde Report, p. 559; for a discussion on the question, see P. Picone, “La nuova convenzione dell’Aja sulla protezione dei minore”, Riv. Dir. Int. Priv. Proc. 1996, 705 at 718. In Belgium, see Civ. Brussels, 25 April 2006, J. T., 2007, 280. In UK, see [2016] UKSC 15.

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These two conditions had been explained by the ECJ.9 As regards to the court better placed, the ECJ precises that “the transfer of the case to that other court is such as to provide genuine and specific added value to the examination of that case, taking into account, inter alia, the rules of procedure applicable in that other Member State”. Furthermore, “in order to determine that such a transfer is in the best interests of the child, the court having jurisdiction in a Member State must be satisfied, in particular, that that transfer is not liable to be detrimental to the situation of the child”. By doing so, the ECJ stresses that a particular connection with a Member State is not enough to transfer jurisdiction to the court of this Member State. In any case, this whole new mechanism, although very interesting, has yet to prove its 13 efficiency, particularly in Member States that do not know the forum non conveniens theory. Legal culture will be an important obstacle to the proper functioning of the rule, and it will probably take at least a few years to adapt judicial minds to such a solution. However, when the court has decided to launch a transfer procedure, two possibilities are 14 described in sub-paragraph (a) and (b), corresponding to Articles 8 § 1 of the Hague Convention. Those two possibilities are equally open to the court, and the decision is left to its discretion. 1. Sub-paragraph (a) The first technical possibility is for the court seized to stay the proceedings and invite the 15 parties to introduce a request before the court of that other Member State. In that situation, the court seized leaves to the parties the efficiency of the transfer mechanism, under Article 15 (4). Pursuant to this provision, as will be seen, if the parties do not seise the designated court, the court of origin will resume its proceedings, and the transfer process will be cancelled. The option opened in sub-paragraph (a), therefore, should be used when the parties agree on the transfer procedure. In any case, the court seized should designate a competent court. The Regulation, if it 16 modifies international jurisdiction, does not have any impact on the internal rules of jurisdictional competency. For this reason, even if the mere designation by the court of origin is enough to give international jurisdiction to the designated court, it nonetheless cannot impact the internal rules of jurisdiction. There is a risk, therefore, that the court of origin makes a mistake and tries to give jurisdiction to a court which, because of national rules of jurisdiction, cannot hear the case. In that situation, the Practice Guide suggests using the European Judicial Atlas in Civil Matters,10 which identifies the territorially competent courts in civil matters in Member States. Help of the Central Authorities can also be sought. If, despite these tools, the court of origin designates an incompetent court, normal procedural rules of the designated State should apply. Once the designated court is seized by the parties, should it accept the case, it will auto- 17 matically gain international jurisdiction. 9

10

ECJ, 27 october 2016, Aff. C-428/15, Child and Family Agency c/J. D., RJPF january 2017, p. 42, obs. Sara Godechot-Patris; Europe, december 2016, p. 46, note L. Idot http://europa.eu.int/comm/justice_home/judicialatlascivil/html/index_en.htm.

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2. Sub-paragraph (b) 18 The other possibility open to the court seized is directly to “request” a designated court. The

exact legal meaning of this term is rather vague, and probably does not mean that the court of origin is formally supposed to seise the designated court. This provision should probably be understood rather informally, meaning that the court of origin, possibly through Central Authorities, asks the designated court to hear the case. 19 Nevertheless, this informal request must respect procedural rules in Member States. Par-

ticularly, the option opened in sub-paragraph (b) can lead to some difficulties in situations where the court cannot decide to hear a case on its own motion. In that situation, the designated court must be seized by someone who is rather difficult to identify. It could of course be a party, but in that situation, options (a) and (b) would be of no practical difference. It seems, therefore, that it would be very difficult for the court of origin to seise the designated court directly. Another possibility would be to pass through Central Authorities, which have the ability to seise a court formally. It seems however that the most efficient solution would be, in that situation, to modify internal procedural laws to accept that the court designated by virtue of Article 15 can hear the case on its own motion. Such a procedural modification might take some time, but is, however, important. 20 In any case, in that situation, the court of origin, as in sub-paragraph (a), must stay the

proceedings until the designated court has made its decision concerning jurisdiction. III. Paragraph (2) 21 Article 15 (2) opens three different possibilities for the use of this transfer mechanism. 22 The first one is the most common one in forum non conveniens cases. This mechanism, as in

the British system, is open only to parties who must apply for a stay of the proceedings.11 More remarkable is the possibility open to courts to use the mechanism on their own motion. This intrusion of the court into a mechanism that was originally designed to satisfy the parties, shows that the whole judicial cooperation process is not left only to the parties. It has to be noted, though, that when a court decides on its own motion to commence the transfer procedure, it has to determine that this transfer is accepted by at least one of the parties. This condition shows that Article 15 provides for real cooperation not only between two courts, but also between the court and the parties. Because of judicial discretion, any agreement between the parties will always be concluded “in the shadow of the law”,12 but, when the court decides to use the transfer mechanism on his own motion, it must nevertheless determine that its intervention is undertaken by at least one of the parties.13 11 12

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Dicey/Morris, The Conflict of laws, Sweet and Maxwell, 15th ed., 2012, rule 38. E.M. Magrone, “La disciplina del diritto di visita nel Regolamento (CE) n° 2201/2003”, Riv. Dir. Int. Priv. Proc. 2005, p. 339, at 360. For a sceptical view on this role devoted to parties, see B. Ancel/H. Muir Watt, “L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis”, Rev. Crit. DIP. 2005. 569, at 598, E. Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9, 2004, p. 132. For an illustration of this rule, see in Belgium, Civ. Brussels, 13 February 2007, Rev. Trim. Dr. fam., 2007. 792.

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The same solution is followed when the transfer is requested by the court of another Mem- 23 ber State. This possibility, opened by Article 15 (2) (c), reverses the general balance of the rule, providing rather for a forum conveniens rule, as in Article 9 of the Hague Convention, rather than for a forum non conveniens rule, as in Article 8.14 This provision is original, since it allows for a court that does not have any jurisdiction over parental responsibility to ask permission to hear the case from the normally competent court (court of the habitual residence of the child, court of the presence of the child, divorce court). The court seized can ask this permission from the normally competent court even though the latter has already been seized. In this situation, it is to be noted that the lis pendens provision (Article 19) cannot apply, since the court asking for a transfer does not have jurisdiction until it has the permission of the normally competent court.15 Such a permission implies that the “only court which can make the substantive decision under Article 15(1) is the court having jurisdiction as to the substance of the matter”, whereas the role of the requesting court is rather limited.16 Article 15 (2) provides for different possibilities of transfer, which are in practice organised 24 by paragraphs (4) and (5). It should be noted that paragraphs (4) and (5) set up rules only for the situation in which the transfer is organised upon request of the normally competent court, and that no specific provision seems to apply to the situation where the transfer is requested by a court that does not normally have jurisdiction over parental responsibility. Such an approach is highly regrettable. IV. Paragraph (3) Article 15 (3) gives the list of the connecting factors which are to be considered as being the 25 “particular connection” mentioned in paragraph (1). It is to be noted that the list of these connecting factors is not the same one given in the 1996 Hague Convention. Particularly, Article 8 § 2 of the Convention permits a transfer to designate a “State with which the child has a substantial connection”, allowing for important flexibility, which is not available under Article 15 (3) of the Regulation. The list of connecting factors that the court can consider is a closed one, and the judicial discretion allowed under paragraph (1) can only be exercised within the boundaries set up by Article 15 (3). This difference between the Regulation and the Hague Convention is an important one, and 26 it seems that the flexibility opened by the latter is even greater than that which is allowed by the former. However, it has to be remarked that the list given in paragraph (3) is rather broad and, therefore, there should be little practical difference between the functioning of those two texts. 1. Sub-paragraph (a) The transfer of the case to the court of the new habitual residence of the child might be an 27 interesting way of dealing with the irritating problem of the change of habitual residence. This difficulty is already tackled in Articles 8 and 9 of the Regulation. The former Article 14 15 16

Lagarde Report (fn. 5), p. 559. The resolution is the same in the Hague Convention, see Lagarde Report (fn. 5), p. 563. In UK, see E. W. H. C. (Family Division), 1 December 2008, AB C. JLB, [2008] EWHC 2965.

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states that the court of the habitual residence of the child at the time the court is seized has jurisdiction, meaning that if the habitual residence is changed afterwards, the court is not deprived of its jurisdiction. The latter states that when the habitual residence of the child is changed, the court of the new habitual residence shall have jurisdiction, provided that, under certain circumstances, and for a period of three months, the court of the former habitual residence can still hear a case concerning parental responsibility.17 Articles 8 and 9, therefore, try to organise a smooth transition of jurisdiction between the courts of the different Member States where the child was and is habitually resident (for a thorough analysis of those provisions, see supra). 28 However, the court of the State of the former habitual residence might deem a quicker

transfer in the best interests of the child, and could transfer jurisdiction to the court of the new habitual residence, which will have jurisdiction for future cases.18 The transfer of the case will therefore ensure that the court that is now considered to be the most closely linked to the child will hear the case, allowing for a concentration of the litigation before that court. Of course, following the general rule, both courts have to be convinced that this transfer is in the best interests of the child. 2. Sub-paragraph (b) 29 Sub-paragraph (b) deals with the exact opposite situation, where the transfer of the case is

organised from the State of the present habitual residence to the courts of the former habitual residence. The child may still have some serious connection with that State, for example, if he has siblings still living there.19 It therefore could be considered by both the court seized and the court of the former habitual residence that it is in the best interests of the child that the case be heard by the latter instead of the former. 3. Sub-paragraph (c) 30 Another “particular connection” mentioned in paragraph 1 is a connection with the courts

of the Member State of the nationality of the child. It was a very important decision by the drafters of the Regulation (as in the 1996 Convention) to leave no room for nationality as a connecting factor for jurisdictional purposes (except in Article 12 (1), in connection with divorce cases). The court of the Member State of the nationality of the child, therefore, cannot be seized of a parental responsibility case. However, the State of the nationality of the child can still have some legal connections with the situation. Particularly, if it is a question of personal status, the parental responsibility can be submitted to the law of that State, depending on the question raised before the court. Therefore, it could be in the best interests of the child in some cases to transfer the case to the court of the State of his nationality, especially in cases where the applicable law is the law of that State. Such a transfer would allow a coincidence between applicable law and jurisdiction, which is an important simplification of the situation. 17 18

19

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For the details, see supra, commentaries of Articles 8 and 9. For an example in Belgium, see Brussels 4 April 2007, J. T. 2077. 623; Rev. trim. dr. civ. 2008, 508, note C. Henricot. In France, see Reims, 28 juill. 2009, JDI 2012. 968, comm. 16, note C. Kleiner. For an example in France, see TGI Bernay, 26 January 2006, Gaz. Pal. 2006, 2, avis J. Sainte-Rose; Procédures, 2006, comm. 275, note C. Nourrisat.

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It should be noted, however, that this argument is of little weight since the 1996 Hague 31 Convention has entered into force, since this convention leaves very little room for considering nationality for applicable law purposes. It is possible, therefore, that a transfer from the courts of the habitual residence to the courts of the nationality of the child will be quite rare and happen only in residual cases. On the other hand, Article 8 § 2 of the Hague Convention also considers that the child’s nationality is a connecting factor justifying the transfer. Therefore, it seems that both provisions, Article 15 (3) (c) and Article 8 § 2, were adopted in order to leave some place, as little as it may be, to nationality of the child as a connecting factor. Like in the Hague Convention, one can suppose that, if the child has various nationalities, 32 transfer can be organised to one or another of his national Member States courts.20 4. Sub-paragraph (d) The possibility to transfer the case to the court of the State where a holder of parental 33 responsibility is habitually resident is indeed an important solution, and it might very well be that this connecting factor proves to be the most important of the whole list. The possibility for a transfer to the State of habitual residence of the holder of parental responsibility will be useful in cases where this parent is directly involved in the proceedings and wishes, for example, to obtain a decision ordering that the child resides with him. 5. Sub-paragraph (e) The last connecting factor listed in the Regulation is the place where property of the child is 34 located. This connecting factor can be taken into consideration only when the case concerns measures for the protection of the property of the child. This original cooperation aims to take into account the fact that there are no specific grounds of jurisdiction for the protection of the property of the child apart from urgent measures that could be taken on the basis of Article 20, if the national rules allow the court to take such measures. In cases concerning the property of the child, it is important to give consideration to the 35 place where the property is located, since the measure obtained in the country of the habitual residence of the child will necessarily be enforced in the country where the property is. It is to be remarked that the easy recognition and enforcement system organised by the third chapter of the Regulation means that the absence of a specific ground of jurisdiction for the court of the State where the child has property is of little importance, since the decision rendered in the country of his habitual residence will presumably be easily recognised and enforced in the country where the property is located. Therefore, the advantage of concentrating the whole litigation concerning the child before the tribunals of his habitual residence is important, since this concentration will ensure that only one court will deal with all the aspects of the protection of that child. However, by the cooperation organised by sub-paragraph (e) of Article 15 (3), some con- 36 sideration can be given to the tribunals of the place of the property, without losing the advantage of a strict concentration of the proceedings before the courts of the habitual 20

See Lagarde Report (fn. 5), p. 561.

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residence. The transfer will ensure a procedural economy, since it will not be necessary to organise an exequatur procedure in the State where the property is, should such an exequatur be necessary. The effect of the transfer will be that the court of the property will have jurisdiction, but a jurisdiction maintained within strict boundaries, since it will be exercised within the limits of the transfer organised by the court of the habitual residence. V. Paragraph (4) 37 The whole transfer process is designed to favour the interests of the child. One of the main

components of this interest is the possibility of obtaining a decision within a short period of time.21 For this reason, Article 15 (4) and (5) organise a fast procedure by which the transfer should be completed as quickly as possible. 38 It must be remarked and indeed strongly criticised that the procedure organised by para-

graphs (4) and (5) concerns only the case where the court first seized is the court having jurisdiction as to the substance of the matter. Therefore, nothing is specifically said about the opposite situation, where the court which does not have jurisdiction asks permission to hear the case, pursuant to Article 15 (2) (c). In that situation, no specific time limit has been established, and no particular solution has been organised. 39 It is regrettable because it is, therefore, impossible to know exactly how the procedure should

take place. Particularly one important question is still open: whether the silence of the normally competent court allows the court asking for jurisdiction to hear the case. In that situation, Article 9 of the 1996 Convention considers that silence should be considered a rejection of the request, in order to avoid possible multiple procedures in various States, all of which would be equally competent, due to the silence of the normally competent court.22 It is suggested that such a resolution should also be followed by the Regulation, and one cannot but regret that no specific solution has been provided by the drafters. 40 In any case, if the procedure is the one provided by the drafters, the first step described in

paragraph (4) takes place when the court to which the case might be transferred has not been seized yet or has not been directly designated by the court seized by virtue of Article 15 (1) (b). In that situation, the court seized asks the parties to seise the court that is considered to be better placed to hear the case and sets a time limit by which the parties shall seise that court. 41 No specific time limit has been set up by paragraph (4), but it is designed to be both

sufficiently long so the designated court can have enough time to assess the opportunity of exercising its jurisdiction, and sufficiently short so the best interests of the child are preserved. As the Practice guide explains: 42 “(I)t should be sufficiently short to ensure that the transfer does not result in unnecessary

delays to the detriment of the child and the parties”.23 21

22 23

182

See ECJ, 27 october 2016, Aff. C-428/15, Child and Family Agency c/J. D,. RJPF january 2017, p. 42, obs. Sara Godechot-Patris; Europe, december 2016, p. 46, note L. Idot. Lagarde Report (fn. 5), p. 563. Practice Guide (fn. 4), p. 19.

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Such an approach does not provide for strict solutions and leaves room for judicial discre- 43 tion. It has to be remarked that it is the court of origin that in any case controls the time limit, since it is for that court to set up a specific time frame. It must be stressed that the determination of this time frame should take into account the procedural constraints of the designated court and, therefore, should not be unilaterally decided. Once again, informal cooperation appears to be particularly necessary for the transfer mechanism to be efficient. In any case, if, within this time limit, the designated court has not been seized, then the court 44 of origin retains jurisdiction (exercised, ex hypothesis, by virtue of Articles 8 to 14) and will hear the case. Once again, this rule shows that the transfer mechanism fundamentally relies on an efficient cooperation procedure between and among the courts and the parties. To the contrary, if the court of the other Member State has been directly designated by the 45 court of origin, the parties do not have to take any action. The designated court only has to answer the question it has been asked by the court of origin, within the specific period of time established by Article 15 (5). VI. Paragraph (5) Article 15 (5) is the second step of the transfer procedure, by which the designated court can 46 accept the case, allowing it to gain jurisdiction over parental responsibility. It is important to stress again that Article 15 allows the possibility of a new and specific ground of jurisdiction. The transfer mechanism is not open between courts that are equally competent, but allows a court with jurisdiction to transfer the case to a court that is not considered competent by any of the jurisdictional rules of the Regulation. The final decision to accept the case or not rests with the designated court. In order to make 47 its decision, this court should only be guided by the best interests of the child, which is the only criteria provided by Article 15 (5). To make its decision, the designated court can ask for more information from the court of origin. The Central Authorities can here be of some assistance, since they can provide the designated court with information about the situation of the child in the State of origin.24 Article 15 (5) provides for a very important time limit, since the final decision on jurisdiction 48 must be rendered within six weeks of the seisure of the designated court. This time limit, which is very short, shows once again that the objective of this transfer mechanism is to obtain a quick decision on jurisdiction, providing for a rapid answer to the question on the matter. However, the exact nature of this time frame can be reviewed if one party does not agree with 49 the decision made by the designated court. This decision will be, in most Member States courts, subject to appeal. Therefore, the time limit in Article 15 (5) might not be observed if the time to obtain a decision on appeal exceeds this six-week time frame. The question here is whether the six-week period concerns only the possibility to obtain a first instance decision or if it concerns the whole procedure set up by Article 15 (5), including a possible appeal. 24

Practice Guide (fn. 4), p. 19.

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50 Comparison can be made here with Article 11 (3). As it has been seen (see supra), the six-

weeks limit given in Article 11 (3) to obtain a decision on the return of the child should be understood as a global limitation, running until an enforceable decision is obtained and, therefore including a possible appeal procedure. It is not certain, however, that the same solution should be observed for the implementation of Article 15 (5). Return procedure is, in essence, a hasty procedure, for which Member States are required “the most expeditious procedure available in national law”, as stated in Article 11 (3). This necessity for an extremely fast procedure seems to be particular to the return procedure, because of the peculiarity of the child abduction proceedings. When the question at stake is parental responsibility, even if the time factor is of some importance to guarantee the best interests of the child, the complete modification of national procedural rules might be considered excessive. Therefore, a different interpretation of this six-weeks limit could be submitted for the proper functioning of Article 15 (5), where this time limit concerns only the first instance decision of the designated court. In any case, in could be possible for the designated court to take into account the possibility of an appeal, and the delay caused by that appeal procedure, in order to take its final decision on the exercise of its jurisdiction. It could be considered, for example, that the risk of a long appeal procedure would not be in the best interests of the child, justifying therefore a refusal to exercise its own jurisdiction by the designated court. 51 Once the decision is made, the question of jurisdiction is supposed to be definitely settled.

Two distinct possibilities appear. 52 The first possibility is that the designated court has accepted the transfer and wishes to

exercise its jurisdiction, since it considers it to be in the best interests of the child. In that situation, the court of origin should decline jurisdiction and is not seized of the case anymore. The second possibility is that the designated court refuses to exercise its jurisdiction. In that situation, the court first seized continues to exercise its jurisdiction and the transfer is aborted. In both cases, the jurisdiction discussions are over, and whatever the effect of the transfer, either the court of origin or the designated court is now competent to hear the case. 53 The principle of the rule laid down in Article 15 (5) is quite simple and should work easily.

The only remaining problem is, once again, the potential effect of an appeal procedure. Depending on specific national rules, an appeal could be lodged against the decision made by the designated court. In that situation and even if the appeal is not suspending the enforceability of the first instance decision, it is hoped that the court of origin waits for the appeal decision before deciding to react. Even though such a solution could result in a regrettable delay, it seems to be the only possible way to avoid conflicting decisions if the first instance decision is later reversed by the court of appeal of the designated State. Article 15 (5), however, does not impose such a solution, which could therefore not be followed by the court of origin. VII. Paragraph (6) 54 This provision provides for some practical details about the judicial cooperation set up in

Article 15.

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The first possibility for the courts is direct cooperation. Such cooperation is of course of 55 great efficiency and is therefore favoured by the European authorities.25 No specific procedure however has been organised for that direct cooperation, which is understood to be rather informal. Actually, the whole system of cooperation is designed to be as informal as possible, and to that effect, the Practice guide makes it very clear that the Regulation aims at organising direct communications without strict legal ties. Therefore, it is desirable that, using the possibility of the European Judicial Network, national courts contact directly their counterparts in another Members State, using if necessary modern communication technologies.26 Article 15 (6), however, does not organise a specific procedural framework, nor does it add 56 to national procedural rules. Therefore, the cooperation between national courts of different Member States has to fit into the national procedural rules if necessary. This means, for example, that national rules of communication of information between the court and the parties are to be strictly followed when they are to be applied. For example, if some official judicial act has to be sent to the court of the other Member State, the rules of the 1393/2007 Regulation27 should be followed. Equally, if it appears necessary to organise some prooffinding on the territory of another Member State, provisions of the Regulation 1206/2001 should be obeyed.28 More informally, cooperation can also take place through the Central Authorities. There- 57 fore, Article 15 (6) provides a bridge for judicial and administrative cooperation, organised by chapter IV of the Regulation. As will be seen (see infra, Articles 53 et seq.), administrative cooperation is designed to be as informal and pragmatic as possible. Therefore, Central Authorities can also be asked to help realise the transfer mechanism in Article 15. Central Authorities can help at every step of the procedure. Particularly, as explained in the Practice guide, they can assist the court in cooperating by providing translation when the courts involved do not speak each other’s language.29 As it has been seen, Central Authorities can also probably formally seise the designated court when the national procedural rules do not allow a court to be seized of a case on its own motion.

25 26 27

28

29

See Practice Guide (fn. 4), p. 20. Practice Guide (fn. 4), p. 20. Council Regulation (EC) No. 1397/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, OJ. L. 324/79, 10/12/2007, p. 79. Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ. L. 174, 27/06/2001, p. 1. Practice Guide (fn. 4), p. 20.

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Section 3: Common provisions Bibliography Amlot/Longmate, Forum Shopping: JKN v. JCN, [2010] Fam. L. 990 Andrae, Anerkennung und Vollstreckung von Entscheidungen sowie die Beachtung der früheren Rechtshängigkeit nach der EheVO (Brüssel II-Verordnung), ERA-Forum 1/2003, 28 Bradley, European Family Law: Practice Issues I, [2008] IFL 85 Laura Brown/Nicole Fisher, Sign here please … Have prenups come of age?, (2008) 158 New L.J. 1548 Douchy-Oudot, Le traitement de la litispendance, in: Fulchiron/Nourissat p. 209 Geimer, Lis pendens in der Europäischen Union, in: FS Hans Jürgen Sonnenberger (2004), p. 357 Urs Peter Gruber, Die “ausländische Rechtshängigkeit” bei Scheidungsverfahren, FamRZ 1999, 1563 Urs Peter Gruber, Die neue “europäische Rechtshängigkeit bei Scheidungsverfahren”, FamRZ 2000, 1129 Urs Peter Gruber, Zur Konkurrenz zwischen einem selbständigen Sorgerechtsverfahren und einem Verbundverfahren nach der EheVO, IPRax 2004, 507 Hodson, Brexit: England and Wales as a Global Family Law Leader or EU-Emasculated?, [2016] Fam. L. 572 I. II. III. IV. V.

Legal history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criticism as to the order implemented . . Ius cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Practical importance . . . . . . . . . . . . . . . . . . . . . . . . Influence on advisors’ practice . . . . . . . . . . . .

1 3 5 6 10

Jarmain, Staying Matrimonial Proceedings – a Thing of the Past?, [2007] Fam. L. 429 Karsten, The State of International Family Law Issues, [2009] IFL 35 Lübbert, Deutsch-französische Scheidung vor Gericht, ERA-Forum 1/2003, 18 Lupoi, The New Lis Pendens Provisions in the Brussels I and II Regulations, ZZP Int. 8 (2002), 149 Lupoi, La “nuova” litispendenza comunitaria: aspetti procedurali, Riv. trim. dir. proc. civ. 2004, 1285 Oxley, Italian torpedoes and international children: how Brussels II engenders conflict in Children Act cases, [2016] IFL 246 Pabst, Entscheidungszuständigkeit und Beachtung ausländischer Rechtshähigkeit in Ehesachen mit Europabezug (2009) Rey, La saisine, in: Fulchiron/Nourissat p. 181 Vitellini, European Private International Law and Parallel Proceedings in Third States in Family Matters, in: Malatesta/Bariatti/Pocar p. 221 Rolf Wagner, Ausländische Rechtshängigkeit in Ehesachen unter besonderer Berücksichtigung der EG-Verordnungen Brüssel II und Brüssel IIa, FPR 2004, 286.

VI.

Judicial co-operation and collaboration as a means of resolve . . . . . . . . . . . . . . . . . . . . . . . 17 VII. Proposals for reform . . . . . . . . . . . . . . . . . . . . . . . 20 VIII. Impact of Brexit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Introductory remarks I. Legal history 1 The so-called common provisions mainly deal with two topics: firstly, with ascertaining

jurisdiction, and, secondly, with lis alibi pendens. The ideas and concepts behind them are copied and imported from the Brussels I system: Arts. 17 and 18 are derived from, and some kind of offspring of, Arts. 19 and 20 Brussels Convention, now succeeded and supplanted by Arts. 25 and 26 Brussels I Regulation. Art. 19 heavily borrowed from Art. 21 Brussels

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Convention, afterwards in an enhanced version implemented as Art. 27 Brussels I Regulation and now with further amendments as Art. 29 Brussels Ibis Regulation, the borrowing with some modification where seemingly appropriate and particularly split into two paragraphs concerning the two grand topics of the Regulation, matrimonial affairs and parental responsibility.1 The case is a little different with Art. 16: Here the former Art. 11 (4) Brussels II Regulation was the frontrunner, and Art. 30 Brussels I Regulation, now Art. 32 Brussels Ibis Regulation, is the copycat. For the sake of continuity2 Arts. 16–19 remained generally unchanged as to substance3 (with 2 the exception of Art. 11 (2) Brussels II Regulation being revised as Art. 19 (2), not extended in the proper sense of the word), but were rearranged as to their respective place within the overall system and to the structure of the former Art. 11 Brussels II Regulation:4 Art. 16 resembles the former Art. 11 (4) Brussels II Regulation with only a slight change of the wording as to the opening words.5 Arts. 17 and 18 are literally identical to the former Arts. 9 and 10 Brussels II Regulation.6 Finally, Art. 11 (1) and (3) Brussels II Regulation found refuge in Art. 19.7 Art. 19 (2) however pays due attention to the extension of the Brussels IIbis regime towards matters of parental responsibility8 whereas Art. 11 (2) Brussels Regulation features as some (unwanted?) victim of the revision.9 II. Criticism as to the order implemented The order of the Section is rather squarely than fairly and not quite intelligible: Art. 16 is 3 related to Art. 19 whereas on the other hand Arts. 17 and 18 are pairing. In verse this would make a rhyme structure of ABBA. But legislation is prose not verse. Why the draftsmen did not adapt the same order as in the Brussels Convention or in the Brussels I Regulation, i.e. why they did not opt for the order (present numbers) 17, 18, 19, 16 lacks explanation. This is the more startling (if not irritating) since Arts. 16 and 19 both were derived from Art. 11 Brussels II Regulation and thus were most closely linked in the past when they were forming parts of a unitary Article then. Formerly, Art. 16 was a fourth paragraph, and now it sprints to the first place in numerical order without any discernible purpose and for no easily detectable reason. Equally questionable is why these four rules form part of a single Section whereas in the 4 Brussels Convention, in the Brussels I Regulation, or the Brussels Ibis Regulation the respective counterparts were rightly divided in two Sections. This is the more puzzling since in the Brussels II Regulation two Sections existed duly mirroring the same structure as it first was implemented in the Brussels Convention. With all due respect, draftsmanship cannot be said to have been at its very top when the present Section was restructured. At least a convincing reasoning for such restructuring has not emerged yet and was not even attempted at. 1 2 3 4 5 6 7 8 9

Biagioni, Riv. dir. int. 2004, 991, 1021. Font i Segura, REDI 2004, 273, 294. Differing apparently Urs Peter Gruber, IPRax 2005, 293, 295. See only Biagioni, Riv. dir. int. 2004, 991, 1021; Strohal, juris-PraxisReport 2005, 85, 86. Rolf Wagner, FPR 2004, 286, 289 et seq.; Rauscher, EuLF 2005, I-37, I-45. Rauscher, EuLF 2005, I-37, I-45. Rauscher, EuLF 2005, I-37, I-45; Ranton, March (2005) IFL 39. Font i Segura, REDI 2004, 273, 294. See in more detail infra Art. 19 notes 38–41 (Mankowski).

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III. Ius cogens 5 Arts. 16–19 are ius cogens. The parties are not entitled to derogate from them even by mutual

understanding and expressed consensus.10 Party autonomy is not available in this area. Yet for instance, Art. 19 might in effect be flanked by if parties terminate the proceedings brought first and thus bring the conflict of two colliding and simultaneously pending actions to an end for practical purposes.11 IV. Practical importance 6 Besides favouring forum shopping the large number of heads of jurisdiction as contained in

Art. 3 in particular generates the possibility if not the probability of conflicting sets of proceedings. In turn a regime for regulating such conflict is necessary. This very necessity prompts Arts. 16–19 on lis alibi pendens and on establishing or cross-checking jurisdiction.12 Hence, these rules gain their weight and their importance from the great number of heads of jurisdiction available to applicants.13 7 In the rather few years for which the Brussels II and now the Brussels IIbis systems have been

effective Arts. 16–19 have already prompted many applications and have established themselves to be one of the central pieces and prominent focal points of the entire system.14 The applications in practice are numerous.15 As to practical importance – at least as evidenced by, and in terms of, published court decisions – their only serious rival is Art. 3. That the Regulation has attended to the vexing question of how to decide which of two Member State courts was seized first has obviously not erased chances that difficulties can arise.16 8 In fact, the wealthiest couples fought the fiercest battles for establishing jurisdiction in

different Member States each spouse pursuing his or her personal interests most egoistically and most thoroughly. The divorcees embark upon a crude race, pitting one jurisdiction against the other and avoiding any judicial appraisal of where the balance of fairness and convenience lay.17 The couple that first litigates where to litigate might be said to be cursed.18 Such curse might be mainly restricted to the rich, though, for “only they can afford such folly”.19 Only the rich fight to establish priority for there is no other incentive to fight but financial advantage.20

10 11 12 13 14 15

16 17 18 19 20

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OLG München EuLF 2000/01, 136; Geimer, in: FS Hans Jürgen Sonnenberger (2004), p. 357, 367. Geimer, in: FS Hans Jürgen Sonnenberger (2004), p. 357, 367. Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. Sana-Chaillé de Néré, D. 2005, 1459, 1461. See Borrás, in: Malatesta/Bariatti/Pocar p. 99, 105. See only the list of decisions by not less than five French Cours d’appel until early 2005 by Wautelet, in: Wautelet p. 69, 101 fn. 66. Briggs, (2005) 76 BYIL 641, 654. Golubovich v. Golubovich [2010] EWCA 810, [2010] 2 FLR 1614, 1629 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). Golubovich v. Golubovich [2010] EWCA 810, [2010] 2 FLR 1614, 1629 (C.A., per Thorpe L.J.).

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Obtaining advice as to which is the best jurisdiction requires good lawyer contacts in other 9 countries and an ability on the client’s side to pay for such advice (and to a certain extent upfront and quickly).21 This favours the wealthier spouse with easy access to specialist resources and lawyers with international experience (which both tend to turn out rather expensive in some jurisdictions) whereas the less wealthy spouse is likely to suffer badly.22 The spouse requiring public funding becomes very vulnerable.23 This is said to become a gender issue and to benefit wealthier spouses who are making the break in the marriage.24 V. Influence on advisors’ practice Arts. 16–19 have undoubtedly and heavily affected family lawyers’ practice,25 the more so 10 since case law tends to show that the successful party is usually the one whose proceedings have progressed further in their chosen court.26 It is said that woe betide the lawyer who does not advise his client of the race to court27 which to a certain extent is sanctioned by Arts. 16– 19. These Articles have inspired a whole charter of litigation tactics and might generate certain tendencies towards surprise attacks in order to obtain the upper hand. Who wants to secure jurisdiction must therefore aim to issue first.28 The first-mover (or better: first-striker) advantage must not be underestimated. The shift of emphasis on jurisdiction and coming to court first placed an absolute premium on seisin29 and snatching the jurisdictional advantage.30 The lis pendens system rewards speed on litigants’ part and does not hasten to penalise self-serving tactics by parties.31 Who strikes first might simply gain the jurisdictional and tactical edge. Such edge becomes 11 the more important and the more crucial the more the chosen forum adheres to the principle of lex fori. For instance, English courts apply English law as the lex fori in matrimonial matters32 and generally disregarded in the past33 any kind of pre-nuptial agreement34 on

21

22

23

24 25 26 27 28 29 30 31 32 33

34

The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. Hodson, [2016] Fam. L. 572, 573. Bradley, June [2008] IFL 85, 86. Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. Bradley, June (2008) IFL 85, 86. Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. Newton, The Uniform Interpretation of the Brussels and Lugano Conventions (2002) p. 166. Briggs, [1994] LMCLQ 158. Crawford, (2005) 54 ICLQ 829, 835. See only McClean, in: Dicey/Morris, Conflict of Laws (16th ed. 2006) para. 18 R-027. Granatino v. Radmacher [2009] UKSC 42, [2010] 2 FLR 1900, [2010] 3 FCR 583, [2010] 3 WLR 1367 (S. C.) now settles the score differently, yet in a manner the details and intricacies of which still need to be explored. Post-nuptial agreements on the other hand have found legal recognition in MacLeod v. MacLeod [2008] UKPC 64, [2010] 1 AC 298 (P.C.).

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which parties from other jurisdictions might rely.35 This might lead to the implosion of any advance planning and gives even greater weight to the race to the courthouse. 12 The system of “first past the post” or “first to issue secures jurisdiction”36 leaves no room for

delay.37 It is alleged to work against attempts to settle, ADR, and saving marriages.38 In the ultimate consequence, there should be no letters and no pre-trial correspondence before action in Brussels IIbis cases.39 Letters might be a forewarning and might entice the recipient to strike first with or without luring the sender in some kind of false security. It became truly inadvisable to send a polite (solicitors’) letter first because just this very letter might provide the other party with the incentive to lodge a pre-emptive strike.40 The kind attempt to settle matters amicably and consensually might badly turn against the one proposing it. Rather than encouraging clients to resolve marital disputes and differences in mediation or collaborative law, lawyers are advising clients to take advice in two or more jurisdictions with a view to issuing proceedings behind the other spouse’s back.41 Art. 19 has been castigated as “very bad law”, having very adverse impact in practice, namely discouragement to resolve matters pre-court, not saving saveable marriages and increasing costs.42 This is also said to affect the settlement-orientated English family law industry.43 12a In children cases the aim that parents resolve their differences without recourse to the courts

is undermined, and a former anathema, namely a jurisdiction race in relation to children, might become reality.44 Delay caused by jurisdiction proceedings is regrettable in divorce cases, but most unwelcome in children cases where time might be of the essence.45 Torpedoes strengthen the factual position of the parent possessing the child, and blow open the door to non-child-centric behaviour which can consequently colour and influence proceedings in the long term.46 The status quo is strengthened, the bias against changing is enhanced for the sake of the welfare of the child, and time can be bought to create a new status quo which will then affect the entire contact timetable.47 Instigating time-consuming proceedings can also compound further to building a new habitual residence of the child.48

35

36

37 38 39 40 41 42 43 44 45 46 47 48

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See only Haneef v. Haneef [1999] EWCA Civ 803 (C.A.); F v. F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, 66 (F.D., Thorpe J.); J v. V [2003] EWHC 3110 (Fam), [2004] 1 FLR 1042 (F.D., Coleridge J.). The International Family Law Group, iGuides to family law and practice – Brussels II p. 2 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. Hodson, [2016] Fam. L. 572, 573. Bradley, [2008] IFL 85, 86; Mankowski, FamRZ 2015, 1865. See the scenario in BGE 123 III 414. Bradley, [2008] IFL 85, 86. Hodson, [2016] Fam L. 572, 573. Hodson, [2016] Fam. L. 572, 573. Oxley, [2016] IFL 246 at 246. Oxley, [2016] IFL 246, 248. Oxley, [2016] IFL 246, 248. Oxley, [2016] IFL 246, 248. See Oxley, [2016] IFL 246, 248.

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Chapter II: Jurisdiction

Introductory remarks

A lawyer’s advice to a client must be to secure jurisdiction first and only then to consider 13 methods of ADR.49 Mediation or other ADR without securing jurisdiction has become unadvisable to a certain degree.50 This jeopardises the changes of successful ADR for ADR after one party unilaterally and tactically securing jurisdiction first has an ominous and acrimonious start, diminishing the prospects of a successful outcome.51 The tactical strike undermines the necessary trust. In turn, this might lead to preemptive strikes, encourages precipitate litigation52 and undermines negotiations which could be sensible. Reconciliation or the exploration of conciliated resolution would be prejudiced.53 Even worse, negotiations before commencing litigation could become treacherous efforts luring opponents in false security whilst one is preparing the own strike.54 Risk-averse legal advice rendered understandably in order to cover the advising lawyer’s back will tend to inflame tensions.55 It will be for individual representatives to mitigate ill feeling which stems from preemptive strikes.56 Even suggesting relationship counselling might be threatened and endangered since doing 14 so and thus admitting that the marriage was in difficulties might prompt and precipitate the other spouse to issue first to the other spouse’s significant advantage.57 In the shadow of a pending application for divorce afterwards there appears to be little room for successful counselling.58 The ‘first past the post’ approach encourages and endorses the spouse who is making the break in the marriage, even without giving a full chance to overcome relationship difficulties and save saveable marriages.59 Lawyers have to balance their clients’ concerns with the advantages of securing jurisdiction 15 and to ensure that they, the lawyers, are not subject to a negligence claim against them in the future.60

49 50

51

52 53 54 55 56 57

58

59

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Bradley, [2008] IFL 85, 87; Wells-Greco, [2011] IFL 207, 209. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf; Mankowski, FamRZ 2015, 1865. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. See Golubovich v. Golubovich [2010] EWCA 810, [2010] 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). See Golubovich v. Golubovich [2010] EWCA 810, [2010] 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). Bradley, [2008] IFL 85, 86. Oxley, [2016] IFL 246, 249. Oxley, [2016] IFL 246, 249. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. The International Family Law Group, iGuides to family law and practice – Brussels II p. 3 (February 2009) http://www.davidhodson.com/aspects/documents/Brussels_II.pdf. Bradley, [2008] IFL 85, 87.

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16 That the Brussels IIbis system does not contain the option of a discretionary transfer might

exacerbate the bitterness of any party obliged to litigate in a court in which that party could have no confidence.61 VI. Judicial co-operation and collaboration as a means of resolve 17 Lis pendens strictly and rigidly applied to the letter will with high likelihood result in orders

which at least one of the parties concerned will find harsh, and might impugn the perceived dignity of at least one of the courts seized with the matter. It is the very result of a rather confrontational process. Judicial co-operation and collaboration might mollify this and might employ co-operative means resulting in co-operative gains. 18 Judicial collaboration in cross-border family disputes within the EU is at a stage of advanced

development.62 On an abstract, not directly case-related level there are regular meetings if the European Judicial Network devoted to family law and practice.63 Additionally, most EU Member States have nominated a judge apiece with responsibility for Brussels IIbis business.64 19 The European Judicial Network might also provide the proper basis for direct communica-

tion between the courts concerned. In practice, perhaps not an immediate need, but at least a desire for direct communication arises once the issue of lis pendens is squarely raised in two jurisdictions.65 Cases tend to illustrate the potential of direct judicial communication and cooperation.66 Judges plainly dealing with the same family dispute in two different jurisdictions should communicate and collaborate.67 They should not advance rival and competing claims for the responsibility to impose solutions on the warring parties.68 Wise and experienced judges might even reach, with amity, a shared view as to which court is better placed to hear the case69 (yet within the limits of their respective national rules of procedure). VII. Proposals for reform 20 In spite of the amount of criticism levelled against the principle of lis pendens the Commis-

sion’s Proposal for a Recast70 does not set out for a major reform of the Common Provisions.71 The present Art. 16 is proposed to become renumbered as a future Art. 15 whereas Arts. 17–19 shall retain their numbers. Terminologically, the Commission aspires at repla61 62 63 64 65 66 67 68 69 70

71

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See Golubovich v. Golubovich [2010] EWCA 810, [2010] 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 [89] (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 [89] (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 [89] (C.A., per Thorpe L.J.). Bentinck v. Bentinck [2007] EWCA Civ 175, [2007] 2 FCR 267, 278 (C.A., per Thorpe L.J.). Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1447 [49] (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 [89] (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 [89] (C.A., per Thorpe L.J.). Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 530 (90) (C.A., per Thorpe L.J.). Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), Com (2016) 411/2 (30 June 2016). Introduction note 144 (Magnus/Mankowski).

November 2016

Chapter II: Jurisdiction

Introductory remarks

cing “court/Court” with “authority/authorities” and “action” with “proceedings” throughout. Two additions and new entries are proposed, though. A new and additional Art. 16 is 21 intended which reads: “Art. 16: Incidental questions If the outcome of proceedings before an authority of a Member State depends in the determination of an incidental question falling within the scope of this Regulation, that authority may determine the question.”

As the Common Provisions on jurisdiction can be regarded as some stray collection the 22 Commission might be permitted for proposing a new and additional Art. 20: “Art. 20 Right of the child to express his or her views When exercising their jurisdiction under Section 2 of this Chapter, the authorities of the Member States shall ensure that a child who is capable of forming his or her views is given the genuine and effective opportunity to express those views freely during the proceedings. The authority shall give due weight to the child’s view in accordance with his or her age and maturity and document its considerations in the decision.”

Neither new entry has the benefit of being accompanied by an extra Recital which would 23 provide for better and more in-depth explanation of the underlying policies. One may doubt whether the wording of the proposed Art. 16 is felicitate with its apparent limitation to incidental questions “falling within this scope of this Regulation”. It would be very unfortunate if that precluded a court seized with divorce proceedings from forming a view as to whether the marriage at stake had been validly concluded in the first place. The conclusion of marriages as such is a matter clearly not falling within the scope of the Brussels II regime. The proposed Art. 20 aims at guaranteeing fairness to the child as the person most con- 24 cerned although the child is not formally a party to the proceedings. On the other hand, any rule-making has to reflect that a child or minor in most jurisdictions is regarded as not having the full capacity to form a legal will freely but rather a natural will. Similar considerations reign under Art. 13 (2) Hague Child Abduction Convention. In its Report the Commission mentioned Arts. 33; 34 Brussels Ibis Regulation as potential 25 templates for reform in a future Brussels IIter Regulation.72 This would establish a European regime for the hitherto uncovered73 field of staying proceedings with regard to parallel proceedings pending in a Third State.74 But the reform agenda at present does not press on and pursue such plans as evidenced by the lack of any reflection in the Proposal.

72 73

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Commission Report on the application of Brussels IIbis, COM (2014) 225 final p. 9. Mittal v. Mittal [2013] EWCA Civ 1255 [37]–[40], [2014] 1 Fam 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.); JKN v. JCN [2010] EWHC 843 (Fam), [2011] 1 FLR 826 (F.D., Judge Theis QC); Andrew Scott, [2010] Fam. L. 740; Frankle, [2014] IFL 17; Bantekas, [2014] IFL 30. Jonathan Hill/Ní Shúilleabhán, Clarkson & Hill’s Conflict of Laws (5th ed. 2016) para. 8.34.

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VIII. Impact of Brexit 26 Once Brexit will become effective, Arts. 16–19 will not be applicable anymore to collisions

between British proceedings and proceedings in the other Member States.75 Lis pendens in these cases will have to be judged on the ground of domestic rules again.76 That is something which from a pointedly English perspective some (but by no means all)77 English family lawyers have long wished for.78 But such Englishness will come with a price: Continental courts might possibly disregard English wholehandedly depending on their respective domestic law. The self-perceived “global family law leader”79 England might detect that for such assumed leadership it needs others willing to follow the lead. Article 16: Seising of a court A court shall be deemed to be seized: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court. I. II. III.

IV.

75

76 77

78 79

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Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Material scope of application . . . . . . . . . . . . . . 7 Notions common to (a) and (b) 1. Document instituting the proceedings or an equivalent document . . . . . . . . . . . . . . . . 12 2. Lodging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. Service a) Notion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 b) Overcoming factual difficulties . . . . . . . . . 26 c) Legal intricacies . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4. Amendments of applications and counterclaims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Autonomous notion of lis pendens 1. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. 3. 4. a) b)

Concept of retroactivity . . . . . . . . . . . . . . . . . 36 Necessary measures . . . . . . . . . . . . . . . . . . . . . 40 “Subsequent” General considerations . . . . . . . . . . . . . . . . . . 45 Implicit reference to time limits under the lex fori . . . . . . . . . . . . . . . . . . . . . . . . 48 c) Other yardsticks . . . . . . . . . . . . . . . . . . . . . . . . . 50 d) Consequences of a lack of subsequent steps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 V. Sorting the national laws . . . . . . . . . . . . . . . . . . . 54 VI. Mandatory attempts for reconciliation . . . 58 VII. Other aspects of seisin outside Art. 16 . . . 63 VIII. Officially instituted proceedings . . . . . . . . . . 64

Rieck, NZFam 2016, 878 at 878; Consolo/Stella, Int’l Lis 2016, 57, 61; see also Ungerer, in: Kramme/ Baldus/Schmidt-Kessel (eds.), Brexit und die juristischen Folgen (2017), p. 297, 307. Rieck, NZFam 2016, 878 at 878. See for an opposite view Bailey-Harris/John Wilson, [2016] Fam. L. 568; Bailey-Harris/John Wilson, [2016] Fam. L. 692. Hodson, [2016] Fam. L. 572; Oxley, [2016] IFL 246. Hodson, [2016] Fam. L. 572.

November 2016

Chapter II: Jurisdiction

Article 16

I. Ratio legis Art. 16 is identical to the former Art. 11 (4) Brussels II Regulation which was singled out, 1 now becoming an Article on its own.1 In turn Art. 30 Brussels I Regulation was modelled on this provision, following suit. In yet another turn, jurisprudence on Arts. 32 Brussels Ibis Regulation; 30 Brussels I Regulation can become a guiding instance for the interpretation of Art. 16.2 The rule is essentially a definition provision3 and seeks to establish a materially4 uniform approach as to how ascertain the point of time when a court is deemed to be seized.5 It employs an autonomous notion and formula of EU law.6 It impliedly inhibits any deviating recourse to yardsticks established under rules of national law, however sensible and appropriate they might seem.7 For instance, it does not embark upon the German distinction between Anhängigkeit und Rechtshängigkeit.8 Art. 16 is intended to simplify in a summary procedure questions of competing international jurisdiction instead of complicating them by expert evidence and complex submissions.9 Art. 16 has been appraised and acclaimed as Salomonic.10 The definition contained carries with it the way of authoritativeness.11 The problem which was intended to address by virtue of Art. 16, once again is forum 2 shopping or, employing more drastic words, forum running.12 In the context of Art. 21 Brussels Convention, the original European role model for lis alibi pendens, a massive problem arose: Debtors unwilling to pay asked for negative declaratory relief in fora which were notorious for their lack of expeditiousness and speed. Creditors who sued too late and stroke only second, faced nearly insurmountable obstacles. Mischievous debtors bringing pre-emptive declaratory judgment suits in overloaded or notoriously torpid fora made the wronged creditors suffer inconvenience in any possible respect.13 Sarcastically, the content of Art. 21 Brussels Convention was circumscribed as “Don’t wait to be sued but sue first!”14

1 2 3 4 5

6

7

8 9

10 11

12 13 14

Malatesta, in: Corneloup, Art. 16 note 2. P v. M (Case C-507/14), ECLI:EU:C:2015:512 paras. 30–32; Mankowski, FamRZ 2015, 1865, 1866. L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1116 (F.D., Singer J.). Gaudemet-Tallon, Clunet 128 (2001), 383, 402; Rey, in: Fulchiron/Nourissat p. 181, 185. See only P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 30; M.H. v. M.H. (Case C-173/16), ECLI:EU: C:2016:452 para. 25; Cassaz. RDIPP 2008, 156, 159; LGZ Wien EFSlg. 120.872; Simotta, in: Fasching/ Konecny, Art. 16 note 1. Se see only Hausmann, A note 96; Daniel Schäuble, in: Althammer, Art. 16 note 1 and Bentinck v. Bentinck [2007] EWCA Civ 175, [2007] 2 FLR 1, 11 et seq., [2007] 2 FCR 267, 279 (C.A., per Lawrence Collins L.J.); Gardeñes Santiago, AEDIPr 2008, 880, 883. Seemingly overlooked by Re F (Habitual Residence: Peripatetic Existence) [2014] EWFC 26 [37] (F.C., Peter Jackson J.); Gillian Douglas, [2014] Fam. L. 1523. Daniel Schäuble, in: Althammer, Art. 16 note 1. Wermuth v. Wermuth (No. 1) [2003] 1 FLR 1022, 1026 (F.D., Bracewell J.); comment by Barruffi, Int’l. lis 2003, 128. Lübbert, ERA-Forum 1/2003, 18, 24; Geimer, in: FS Hans Jürgen Sonnenberger (2004), p. 357, 361. See Kolden Holdings Ltd. v. Rodette Commerce Ltd. [2007] EWHC 1597 (Comm), [2007] I.L.Pr. 669, 678, [2007] 4 All ER 62, 76 (Q.B.D., Aikens J.). The expression is borrowed from Jegher, ZSR NF 118 (1999) I 31, 34. See only Hueske, 41 Geo. Wash. Int’l. L. Rev. 433 at 433 (2009). Briggs, [1992] LMCLQ 150.

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and “Get your writs out!”.15 The ECJ did not give creditors a helping hand but stood firmly with the very wording.16 3 In order to ease and to alleviate the pains of potential “natural” applicants legislative drafts-

men thought of taking some edges out of the race to the courthouse by establishing a Community (now EU) notion of seisin.17 The balance of power and some protection against the abuse of procedure was intended.18 That this was first instrumentalised in the context of Art. 11 (4) Brussels II Regulation with Art. 30 Brussels I Regulation only following suit, is not without irony. In matrimonial matters, the race is rather not on between positive action for specific performance or for damages and negative declaratory actions, but prospectively between two different and directly competing applications e.g. for divorce or distributing parental responsibility. Whereas under the Brussels I/Ibis system defendants transmogrify into plaintiffs19 and the negative action is at its very top,20 under the Brussels IIbis system the competition is on between applications for positive orders directly favouring the respective applicant. Art. 16 attempts at putting all applicants on an equal footing in the outset.21 If exceptionally a negative declaratory action is made pending (for instance in Germany pursuant to § 121 pt. 3 FamFG), (1) is triggered,22 though, unless one is prepared to exclude declaratory relief from the substantive globe of the entire Brussels IIbis Regulation.23 4 Perhaps quite astonishingly and rather by chance the solution found is more justified here

than under Art. 32 Brussels Ibis Regulation. There the problem of forum running was in essence not a problem of diverging definitions of seisin since in not a single one of the known or published cases it was seriously and materially in doubt which court was seized first. Every time the torpedo clearly hit first before the counter-strike found its target (and the main problems encountered by the party getting the worse of the race ordinarily were not problems of serving the respective writ on the prospective defendant abroad).24 Hence, there the cure does not address the disease properly.25

15 16

17

18 19 20 21 22

23 24 25

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Briggs, [1994] LMCLQ 158. Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) [2003] ECR I-14693, I-14746 et seq. paras. 70–73; noted by Christian Thiele, RIW 2004, 285; Baatz, (2004) LMCLQ 25; Mankowski, EWiR Art. 21 EuGVÜ 1/04, 439; Helmut Grothe, IPRax 2004, 205; Theodor Schilling, IPRax 2004, 294. Gerhard Walter, in: FS Ekkehard Schumann (2001), p. 559, 567; Makridou, in: FS Kostas Beys (Athinai 2003), p. 941, 944–946; Malatesta, in: Corneloup, Art. 16 note 1; cf. also Prütting, in: GS Alexander Lüderitz (2000), p. 623, 631 et seq. Dilger, in: BBGS, Art. 16 note 2 (2005). As succinctly phrased by von Mehren, in: FS Ulrich Drobnig (1998), p. 409. See in more detail in particular Bomhoff, NIPR 2004, 1. Malatesta, in: Corneloup, Art. 16 note 3. Hau, FamRZ 2000, 1333, 1339; Rauscher, in: Rauscher, Art. 19 note 20; Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 19 note 10. As Hausmann, A note 127 does. See Grothe, IPRax 2004, 83. Mankowski, in: v. Bar/Mankowski, Internationales Privatrecht I: Allgemeine Lehren (2nd ed. 2003) § 5 note 142; Mankowski, RIW 2004, 481, 493; Grothe, IPRax 2004, 205, 212; Mance, (2004) 120 LQR 357, 362.

November 2016

Chapter II: Jurisdiction

Article 16

Establishing a EU notion of seisin, a twofold one at that, might have been a nice move with 5 regard to aesthetic criticism against a reference to national law,26 but was not really a necessity (since in the event that the alleged defects were generated by national law opting for a rather late point of time when it deemed the respective courts seized only after service on the defendant was effected,27 national law reform could have provided the remedy). The equivalence of weaponry available could be provided by national law, and that Arts. 32 Brussels Ibis Regulation; 30 Brussels I Regulation re-open the race for faster seisin in favour of some States,28 is rather a side-effect. The case could be different in the context of the Brussels IIbis Regulation, though. However, Art. 16 does not protect either spouse against any coup de main or coup de surprise, 6 any pre-emptive strike by the other spouse. He who comes definitely late still gets only second-best. He who is too cautious will fall victim to the rasher and to the more ruthless and less scrupulous. The more decided spouse gains the edge over the more pensive. Absent a clear case of irregularity, there should be a strong presumption that the court of first issue is the court first seized.29 Only frivolous or vexatious proceedings being started without any real will of carrying on the suit will falter since their sole aim can be discerned as an attempt to trigger the lis pendens mechanism.30 II. Material scope of application Nevertheless, the scope of Art. 16 is rather limited: It does not introduce any notion of seisin 7 to be applied universally throughout the procedural law of the Member States. Nor does it attempt to unify the existing definitions of seisin in national laws. To the contrary, it takes into account the divergences as to the definition of seisin between the national laws of the Member States and tries to reflect these divergences in its two alternatives, each tailor-made for a different basic type of national definition. Hence, Art. 16 mirrors some kind of compromise. It refrains from creating a truly autonomous notion of seisin for every procedural purpose in which such notion may be relevant.31 Furthermore, it only deals with “seisin” and does not attempt at solving the jigsaw of “first seized”.32 It directly relates only to when a certain court is seized, not to a possible clash between different sets of proceedings.33 Furthermore, it appears arguable whether Art. 16 should be taken as a notion of seisin 8 generally applicable throughout the entire Brussels IIbis Regulation or whether one should limit its substantive scope of application both virtually and literally to Art. 19. With regard to 26

27 28 29 30 31 32

33

Uttered e.g. by Makridou, in: Liber amicorum Konstantinos Kerameus (Athinai 2000), p. 237, 255; Makridou, in: FS Kostas Beys (Athinai 2003), p. 941, 943 et seq.; Gardeñes Santiago, AEDIPr 2002, 671, 673. Precisely addressed e.g. by Dieter Stauder, in: FS Gerhard Schricker (2005), p. 917, 928. Baatz, [2004] LMCLQ 25, 28. Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). Malatesta, in: Corneloup, Art. 16 note 12. Lupoi, ZZP Int. 8 (2002), 149, 168. Stribog Ltd. v. FKI Engineering Ltd. [2011] EWCA Civ 622, [2011] 2 Lloyd’s Rep. 387, 391 [24] (C.A., per Mummery L.J.) on Art. 30 Brussels I Regulation. Stribog Ltd. v. FKI Engineering Ltd. [2011] EWCA Civ 622, [2011] 2 Lloyd’s Rep. 387, 391 [24] (C.A., per Mummery L.J.) on Art. 30 Brussels I Regulation.

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Art. 32 Brussels Ibis Regulation, one tiny difference in detail should not escape attention in this regard: Whereas Art. 32 Brussels Ibis Regulation in its wording refers only to the purposes of the respective section (which comprises Arts. 29–32 Brussels Ibis Regulation), a like restriction does not reappear in Art. 16. Likewise, the words “for the purposes of this Article”, the former opener of Art. 11 (4) Brussels II Regulation, have not been reproduced nor substituted with any other restriction. This could with some force serve as an argumentum e contrario in order to apply Art. 16 for instance in the context of Art. 6434 or for the purposes of determining jurisdiction under Arts. 8–15 after a switch of habitual residence.35 This might draw further support, if any, from the restructuring of the present Section compared to Art. 11 Brussels II Regulation with Art. 16 taking the lead in numerical order and being separated from Art. 19.36 9 As Art. 16 is a copycat derived from Art. 11 Brussels II Regulation. It was designed with more

than only a view to the (then) Art. 30 Brussels I Regulation (now Art. 32 Brussels Ibis Regulation).37 It has been developed for procedures instituted by either party as the terminology “applicant” and “respondent” unambiguously indicates. Yet in the field of parental responsibility some proceedings might be established ex officio, be it by some office of the court or some public body. Whereas Art. 16 is tel quel applicable to matters of parental responsibility which are kicked off by an application by either party, in said matters initiated ex officio the relevant point of time should be the one when the court is first concerned with the matter as evidenced by the record or the minutes of the court.38 Art. 14 (c) Successions Regulation might serve as an argumentative model in this regard.39 10 That the English version refers to a “time” whereas the French text employs “la date à

laquelle”40 should be seen as an immaterial linguistic nuance not bearing any relevance.41 The “time” referred to in the English version should be read and understood as “date”. This should relieve of any conundrum. Art. 16 is describing a particular moment and not a period of time; the proviso is a condition defeasant.42 11 Art. 16 aims at a common notion for both matrimonial causes and causes related to parental

responsibility.43 Yet it has gained more prominence in matrimonial causes since the likelihood of conflicting sets of proceedings related to parental responsibility under Arts. 8 et seq. is less than the likelihood of conflicting sets of matrimonial causes under Arts. 3 et seq.44 34

35 36 37 38 39 40 41

42

43 44

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See in more detail Art. 64 note 5 (Mankowski) and on the respective problem under Art. 66 Brussels Ibis Regulation Mankowski, in: Magnus/Mankowski, Art. 66 Brussels Ibis Regulation notes 19–22. Hausmann, A notes 43, 96, 164; Daniel Schäuble, in: Althammer, Art. 16 note 2. Dilger, in: BBGS, Art. 16 note 3 (2005). See only Nordmeier, IPRax 2016, 329 at 329. Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 16 note 7; Rauscher, in: Rauscher, Art. 16 note 1. See Nordmeier, IPRax 2016, 329 at 329. Emphasis added. But cf. L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1116 (F.D., Singer J.) where the point was expressly left open. Re I (A child) (Contract application: jurisdiction) [2009] UKSC 10 [80], [2010] 1 FLR 361 (S.C., per Lord Clarke of Stone-cum-Ebony). Rauscher, in: Rauscher Art. 16 note 1. Rauscher, in: Rauscher Art. 16 note 1.

November 2016

Chapter II: Jurisdiction

Article 16

III. Notions common to (a) and (b) 1. Document instituting the proceedings or an equivalent document The expression “document instituting the proceedings or an equivalent document” has 12 gained no direct definition45 but has been – if indirectly – borrowed from Art. 27 (2) Brussels Convention, afterwards Art. 34 (2) Brussels I Regulation and now Art. 45 (1) (b) Brussels Ibis Regulation in the related context of recognition and enforcement. This gives rise to the advantage that interpretative support might be gained from the jurisprudence of the ECJ in the context of the Brussels I regime, and thus better guidance might be provided for the unwary. Furthermore, it is bound to reappear in Arts. 22 (b); 23 (c) yet again in the related context of recognition and enforcement. Yet neither the ECJ nor the CJEU has ever attempted at a formal definition of the concept 13 and notion of “document instituting the proceedings or an equivalent document” but has rather employed a functional circumscription which helps to identify the relevant document through its function independently of its designation and denomination in the respective legal order. This is the correct approach not the least since any alternative approach would run in severe difficulties to cope with the rather open concept of an “equivalent” document. One simply has to identify the function served in order to identify the purpose and the nature of the respective document. As to the formal nature of the document it will take different forms according to the various procedures provided for in the laws of the Member States.46 The ECJ circumscribed the term “document which instituted the proceedings or equivalent 14 document”47 as meaning the document or documents which must be duly and in due time served on the defendant in order to enable him to assert his rights before an enforceable judgment is given in the State of origin.48 This notion covers any document the service of which enables the applicant, under the law of the State of the court in which the judgment was given to obtain, in default of appropriate action by the respondent, a decision capable of being recognised or enforced under the provisions of the respective Brussels regime.49 Two criteria can be deduced from the definition: the document must necessarily be served 15 before an enforceable judgment can be obtained, and it must enable the respondent to decide whether to defend the action.50 It is actually due to call on the respondent to prepare, and to arrange for, his defence.51 The level of particularity is the minimum necessary for the

45 46 47

48 49 50

51

Briggs, (2005) 76 BYIL 641, 656. Layton/Mercer para. 26.032. See in extenso monographically Martin Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr. 2 EuGVÜ, Lugano-Übereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998). Hengst Import BV v. Anna Maria Campese, (Case C-474/93) [1995] ECR I-2113, I-2128 para. 19. Peter Klomps v. Karl Michel, (Case 166/80) [1981] ECR 1593, 1605 et seq. paras 8–11. BGHZ 141, 296; OLG Saarbrücken OLG-Report Koblenz/Saarbrücken/Zweibrücken 2001, 474; Leible, in: Rauscher, Art. 45 Brüssel Ia-VO note 28; Francq, in: Magnus/Mankowski Art. 45 Brussels Ibis Regulation note 38. Francq, in: Magnus/Mankowski, Art. 45 Brussels Ibis Regulation note 38.

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defendant whether he is to defend the application.52 Therefore the document which instituted the proceedings or equivalent document must convey sufficient information about the subject matter and the elements of the proceedings.53 The key elements must be brought to the respondent’s attention.54 To this avail the document must be comprehensible.55 16 These are minimum requirements established by EU law and paramount to national law,56

but to fulfil them is per definitionem sufficient. The stakes are not higher. In particular, it is not required that the initial request presents a good arguable case or that it refers to any means of proof for the contentions it contains.57 Furthermore, one should not require the applicant longing for divorce to present a marriage certificate since this is rather administrative58 and not an integral part of the initial application.

17 Requiring a basic degree of comprehensibility leads to the intricate question as to whether

the document has to be drafted in a language which the respondent is known to understand. The most elegant way of solving this is to keep a vigilant eye on Art. 8 Service Regulation.59 60 Insofar as service of the document instituting the proceedings, on a respondent resident in another Member State than the forum stateis required such service must comply with the prerequisites defined under the Service Regulation. The Service Regulation does deal, however imperfectly,61 with questions of language and translation in its Art. 8.62 18 Documents presented subsequently in the proceedings after they have been initiated do by

their very definition not constitute documents.63 There is but one important exception: Documents which contain additional application widening and extending the subject matter of the proceedings are initiating documents insofar as they apply for such extension.64 52 53

54 55 56 57

58

59 60 61

62 63 64

200

Layton/Mercer para. 26.032. Volker Sonntag v. Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann, (Case C-172/91) [1993] ECR I-1963, I-2000 para. 39; Leible, in: Rauscher, Art. 34 Brüssel I-VO note 28. Heß, IPRax 1994, 10, 16; Kodek, in: Czernich/Tiefenthaler/Kodek, Art. 34 EuGVVO note 17. See Layton/Mercer para. 26.032. Geimer/Schütze Art. 34 EuGVVO note 119. Grunsky, IPRax 1996, 245, 246; Kodek, ZZP Int. 4 (1999), 125, 136; Leible, in: Rauscher, Art. 45 Brüssel Ia-VO note 28. LK v. K (No 3) [2006] EWHC 153 (Fam), [2006] 2 FLR 1113 [32]-[33] (F.D., Peter Singer J.); see also Malatesta, in: Corneloup, Art. 16 note 10 fn. 14. Hof ’s-Gravenhage NIPR 2006 Nr. 12 p. 30. See infra Art. 16 note 28 (Mankowski). See only Götz Leffler v. Berlin Chemie AG, (Case C-443/03) [2005] ECR I-9611; Mankowski, (2006) 43 C. M.L. Rev. 1689. See in more detail infra Art. 16 note 28 (Mankowski). Geimer/Schütze Art. 34 EuGVVO note 122; Kropholler/von Hein, Art. 34 EuGVVO note 31. Grunsky, IPRax 1987, 219; Martin Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr 2 EuGVÜ, Lugano-Übereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998) pp. 182 et seq.; Rolf Stürner, JZ 1992, 329, 333; Heß, IPRax 1994, 10, 16. Contra BGH IPRax 1987, 236 = WM 1986, 1370; BGHZ 141, 286; BGH NJW 1990, 2201; Stadler, in: Gottwald (ed.), Revision des EuGVÜ/Neues Schiedsverfahrensrecht (2000), p. 37, 53; Burgstaller/Neumayr, in: Burgstaller/Neumayr Art. 34 EuGVO note 21 (October 2002); Kodek, in: Czernich//Kodek/Mayr, Art. 45 EuGVVO note 14; Geimer/Schütze Art. 34 EuGVVO note 122.

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Accordingly, in particular documents which strive for establishing counter-applications can be documents which institute proceedings but only insofar as the counter-application goes beyond the substantial scope of the application. Simply throwing in a counter-application for divorce in divorce proceedings which are already pending, does not suffice. In proceedings aiming at the dissolution of a marriage or in matters of parental responsi- 19 bility it is highly unlikely that any additional application might add a further party to the proceedings. Yet if this very exceptional case arises, the document evidencing such application must be treated as a document instituting the proceedings as far as they relate to the further party.65 An application for mere provisional and preliminary proceedings (like e.g. a voorlopig 20 getuigenverhoer in the Netherlands or a selbständiges Beweisverfahren in Germany) does not institute the main proceedings, though66 (but should be handled under Art. 20 where feasible).67 The same holds true for applications for injunctive relief insofar as they do not institute the main proceedings. Mere preparatory steps requesting disclosure, discovery or alike do not make the application for divorce per se pending unless the lex fori of the respective proceedings provides otherwise. If steps for reconciliation are a feasible opener for matrimonial proceedings under the lex fori the respective applications might nonetheless be documents instituting proceedings even if they are combined with requests for injunctive relief.68 But the case might be entirely different with regards to application for legal aid: If national law regards an application for legal aid in advance of the main claim or writ as already bringing the entire proceedings to court this should suffice69 at least as an equivalent to a document instituting proceedings, but not as such a document proper.70 2. Lodging “Lodging” has not obtained a detailed definition yet,71 not even in the context of Arts. 30 21 Brussels I Regulation; 32 Brussels Ibis Regulation. It might best be understood in a rather formal sense that it means filing the relevant document with the court, submitting it to the court as the first addressee. It must comprise an act of communication between the person lodging the claim and the court. In this context it does not matter whether the court is locally competent and the proper venue according to the yardsticks of its national lex fori if it duly transfers to the locally competent court.72

65 66 67

68

69 70

71 72

See Geimer/Schütze Art. 34 EuGVVO note 122. Schlosser/Hess, Art. 45 EuGVO note 10; Leible, in: Rauscher, Art. 45 Brüssel Ia-VO note 29. See Mankowski, JZ 2005, 1144. But cf. also St. Paul Dairy Industries NV v. Unibel Exser BVBA, (Case C-104/03) [2005] ECR I-3481. OLG Koblenz IPRax 1992, 36; Schlosser/Hess, Art. 45 EuGVO note 10; Stumpe, IPRax 2008, 22, 24. See in more detail Art. 16 notes 58–61 (Mankowski). Simotta, in: Fasching/Konecny, Art. 16 note 23. Hausmann, A note 98, B note 193; Daniel Schäuble, in: Althammer, Art. 16 note 3; Spellenberg, in: Staudinger, Art. 16 note 6. Contra OLG Stuttgart NJW 2013, 398; AP Teruel unalex ES- 518. Malatesta, in: Corneloup, Art. 16 note 5. Hausmann B note 192; Daniel Schäuble, in: Althammer, Art. 16 note 5.

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22 A certain degree of formalisation is not prescribed by EU law. Yet in this regard, the national

law of the court with which the claim is in question to be lodged, is called upon to determine the necessary formalities. If writing is required informal communications do not suffice. Conditional lodging is not per se detrimental.73 23 Art. 16 does not contain any restrictive definition or notion of “court”, either.74 Art. 2 (2)

defines “judge”, but not “court”. Accordingly, general yardsticks apply, and a “court” should be understood as a judicial body potentially deciding cases submitted to it with binding force. Art. 3 Brussels Ibis Regulation does not provide any further help.

23a Under a European law which rewards coming first even if only by minutes, it might be very

recommendable for parties lodging their application with a court, to request the court, or more precisely, the competent person at the court to register the time of their entry as accurate as possible, at least by the hour, best by the minute, and to issue a respective confirmation.75 If under national law the official registration alone matters, it should be reegarded as “lodging” for the purposes of Art. 16, too.76 3. Service a) Notion 24 The notion of “service” is not directly defined in Art. 16. Within the emerging realm of

Community instruments, originally Regulation (EC) No. 1348/2000,77 now its successor Regulation (EC) No. 1393/2007 (the Service Regulation)78 might give a helping hand to its sister instrument, though, further supported by the case law on the notion of service under the Brussels I/Ibis regime where this notion has been employed for decades in the past already with regard to Arts. 21; 27 (2) Brussels or Lugano Conventions; 27; 34 (2) Brussels I Regulation, now Art. 45 (1) (b) Brussels Ibis Regulation. The concept of “service” in both Arts. 32 Brussels Ibis Regulation; 30 Brussels I Regulation and Art. 16 here must be consonant with the concept in the Service Regulation.79 Otherwise there would be a serious mismatch between the respective provisions for seisin and judgment recognition.80 24a Art. 32 (1) subpara. 2 Brussels Ibis Regulation contains another valuable clarification which

should be transferred to the realm of Art. 16, namely that the authority responsible for 73 74 75 76 77

78

79

80

202

See OGH JBl 2016, 543 = EF-Z 2016/136, 278 with note Nademleinsky. Stumpe, IPRax 2008, 22, 24. Viganotti, Pratique du divorce international (2016) p. 24. See Rein-Lecastereyes, Gazl. Pal. no. 1, 2 janvier 2016, p. 68; Chalas, RCDIP 2016, 387, 391. Council Regulation No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, OJ 2000 L 160/37. Council Regulation No. 1393/2007 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EU) No. 1348/2000, OJ 2007 L 324/9. Tavoulareas v. Tsavliris (No. 2) [2006] EWCA Civ 1772, [2007] 1 WLR 1573, 1578 (C.A., per Longmore L.J.); Malatesta, in: Corneloup, Art. 16 note 6. Tavoulareas v. Tsavliris (No. 2) [2006] EWCA Civ 1772, [2007] 1 WLR 1573, 1578 (C.A., per Longmore L.J.).

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service shall be the first authority receiving the documents to be served.81 This is consonant with Art. 2 (1) Service Regulation, too.82 Insofar as service within the EU is at stake the Service Regulation must be applied anyhow, 25 and the requirements set out in it are to be observed. The Service Regulation establishes the standards in this regard and is specifically designed for governing intra-Community service. With regard to Denmark the bilateral EU-Denmark Treaty on Service83 substantially mirroring the Service Regulation reigns. The national laws of the Member States are called upon only insofar as neither the Service Regulation nor any prevailing Treaty like the Hague Service Convention is applicable or gives respective space. The main fields of application of national laws are the purely domestic service on one hand (if the respondent or, generally, the addressee is resident in the forum state) and the service outside the EU on the other hand (if the respondent or, generally, the addressee is resident outside the EU). b) Overcoming factual difficulties Serving the application on the respondent can be difficult in practice, in particular where the 26 respondent has moved to a new place unknown to both applicant and court. Nevertheless, in some events service might be effected on other persons than the respondent personally but who are deemed the respondent’s representatives. If the respondent has left without any notice where his new vacation can be located, service might be effectuated on the respondent’s former lawyer who had represented the respondent in a previous application for legal aid.84 However, if the respondent’s whereabouts are not known without any fault on the applicant’s side (and the applicant has every incentive to investigate such whereabouts as thoroughly as possible) a court should in any event be cautious and reluctant to ascertain that the applicant failed to effect service subsequently.85 c) Legal intricacies The difficulties of service do, however, not stop with these factual considerations. Service in 27 any event requires compliance with the regime concretely applicable to issues of service. Insofar as service within the EU is at stake the Service Regulation must be applied, and the requirements set out in it are to be observed.86 Whether these requirements are met must be ascertained in the concrete case.87 The requirements of the Service Regulation include Art. 8 (1) Service Regulation which vests 28 in the addressee a personal right to reject service if the document to be served is not in a language listed in Art. 8 (1) Service Regulation. If the addressee rightfully rejects service based on Art. 8 (1) Service Regulation (and there has not been a valid rectifying attempt of service afterwards) service has failed for the purposes of Art. 16, too.88 81 82 83

84 85 86 87 88

Malatesta, in: Corneloup, Art. 16 note 6. Insofar Malatesta, in: Corneloup, Art. 16 note 6 appears to be mistaken by Art. 2 (2) Service Regulation. OJ EU 2005 L 300/55 and the Note by Denmark on the application of Regulation (EC) No. 1393/2007 in substance, OJ EU 2008 C 115/353. KG FamRZ 2005, 1685, 1686 = NJW-RR 2005, 881, 882. KG FamRZ 2005, 1685, 1686 = NJW-RR 2005, 881, 882. Supra Art. 16 note 25 (Mankowski). Rb. ’s-Gravenhage NIPR 2007 Nr. 112 p. 161. Hof ’s-Gravenhage NIPR 2006 Nr. 12 p. 30.

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29 If the applicant fails to effect service on the respondent in accordance with the lex fori, the lis

pendens effect which had been previously established is eliminated. If the applicant happens to fulfil the prerequisites later on, the question is whether the lex fori allows for rectification and remedying or to the contrary dismisses the application in its entirety. If, by the lex fori (of course including the Service Regulation where applicable) rectification is allowed for, lis pendens is established from the point of time when all necessities for effecting service on the respondent are fulfilled.89 Irregularities of service after lodging do not render the application ineffective but might be cured even if they allegedly undermined the respondent’s right of defence.90

30 Nonetheless, even premature service on the respondent before effectively lodging the initi-

ating document with the court should do the trick for the applicant since he clearly demonstrated that he was not idle. However, national law could militate against such solution demanding service after lodging.91 (a) might be read to support this insofar as the wording refers to the applicant subsequently failing to take the steps he was required to take to have service effected on the respondent.92 Yet careful and cautious reading should reveal that this clause is formulated as a negative condition, and in its own right it can be said and asserted that the applicant has not failed subsequently if he has complied in advance for in such event no need for subsequent dealings would arise. 4. Amendments of applications and counterclaims 31 If the applicant amends his original application and by this way tries to extend the subject

matter covered or if the respondent files a counterclaim the respective amendment or extensive or the respective counterclaim is the only relevant application insofar as matters are at stake which are only covered by this amendment, extension or counterclaim and not by the original application.93 This holds true in particular if originally the application was only for divorce and later-on an application with regard to parental responsibility is added.94 Independent issues receive individual and independent treatment. Certainty and predictability require the single claim to be clear at the date of initial seisin so that new claims added thereafter cannot modify the initial claims and their effects cannot be backdated to date of the commencement of the initial proceedings.95 IV. Autonomous notion of lis pendens 1. Generalities 32 Art. 16 comprises an autonomous notion96 in order to determine the point of time when the 89 90

91 92 93

94 95

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Urs Peter Gruber, FamRZ 2000, 1129, 1133. AP Barcelona AEDIPr 2008, 880, 881; Gardeñes Santiago, AEDIPr. 2008, 882; Malatesta, in: Corneloup, Art. 16 note 14. App. Milano RDIPP 2005, 141, 142 et seq. = EuLF 2005, II-134 with note Mongiò-Erdelbrock. Emphasis added. Spellenberg, in: Staudinger, Art. 16 note 16; Simotta, in: Fasching/Konecny, Art. 16 note 16; Malatesta, in: Corneloup, Art. 16 note 9. Spellenberg, in: Staudinger, Art. 16 note 16. Malatesta, in: Corneloup, Art. 16 note 9.

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competing proceedings become pending. It establishes a uniform substantive rule of procedural law.97 Like Arts. 32 Brussels Ibis Regulation; 30 Brussels I Regulation, Art. 16 in principle deviates from, and breaks away from, determining this question pursuant to the various national procedural laws of the Member States.98 But the autonomous notion is no more a starting point. The invasion into the territory of national law does not penetrate national law in fullest deep and does not sweep away national law in its entirety.99 It would be deeply inappropriate to establish a general notion when a court is deemed to be seized, and introduce it as a general solution into national law for every possible respect only to fulfil the limited purposes pursued by international procedural law. Of course, this might enhance the danger that different notions of seisin have to co-exist within the same legal system for different purposes and that international and national rules are alienated from each other.100 As a deterrent to frivolous or vexatious proceedings, Art. 16 requires that a court will be 33 seized at the time that proceedings were formally initiated, only if subsequently the necessary initiation procedures have been completed.101 (a) provides that a court is only seized by the filing of the claim if subsequently the claim is served. Art. 16 (b) provides that a court is only seized by service of the claim if subsequently the claim is filed. Art. 16 opts for a rather early point in time (or perhaps even the earliest point in time 34 feasible)102 for a court to be seized: According to (a), a court is already deemed to be seized when the document instituting the proceedings is lodged with the court, provided that the applicant does not fail to take the steps required to have service effected on the respondent. Those prerequisites are judged according to the lex fori.103 If the applicant complies with the rules of the lex fori about service he does not fail in any event.104 The European legislator wants to punish the applicant for becoming idle and to fail to serve the document.105 The respective proviso aims at ensuring protection against abuse of process.106 It is not significant if service is to be effected on the respondent ex officio, i.e. of the court’s own motion. Service becomes mainly relevant in case of its shortfall.107 But service being effected, the applicant is not bothered with the span of time this might have consumed.108 He is not beleaguered with

96

97

98

99 100 101 102 103 104

105 106 107 108

See only Cass. Bull. civ. 2006 I N°. 374 p. 320, 322; Cass. Bull. civ. 2006 I N°. 375 p. 322, 323; Mankowski, FamRZ 2015, 1865, 1866. Droz/Gaudemet-Tallon, RCDIP 90 (2001), 601, 642; Ciron, RCDIP 104 (2015), 455, 457; Mankowski, FamRZ 2015, 1865, 1866. See only Mostermans, NIPR 2001, 293, 300; Gaudemet-Tallon, Clunet 128 (2001), 383, 402; Rey, in: Fulchiron/Nourissat p. 181, 186. Layton/Mercer para. 22.053. Rey, in: Fulchiron/Nourissat p. 181, 187. Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 3. Mostermans, NIPR 2001, 293, 301; Crawford, (2005) 54 ICLQ 829, 839. Urs Peter Gruber, FamRZ 2000, 1129, 1133. Royal & Sun Alliance Insurance ply v. Digital FZE (Cyprus) Ltd. [2005] 2 Lloyd’s Rep. 679, 690 = [2005] ILPr 707, 724 (Q.B.D., Aikens J.). Mongiò-Erdelbrock, EuLF 2005, II-135; Mankowski, FamRZ 2015, 1865, 1866. M.H. v. M.H. (Case C-173/16), ECLI:EU:C:2016:452 para. 27. Mongiò-Erdelbrock, EuLF 2005, II-135. KG FamRZ 2005, 1686, 1687; Andrae, ERA-Forum 1/2003, 28, 52; Mankowski, FamRZ 2015, 1865, 1866.

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delays caused by the judicial system(s).109 Generally, Art. 16 is rather fortunate and encouraging for the applicant. It entitles the applicant to “book” the effects of seisin at an earlier moment than would otherwise be allowed by regular national rules.110 The uniform solution and the allegedly unitary point of time when the lawsuit becomes pending111 favour the applicant. 35 If the document instituting the proceedings is, according to the lex fori, to be served before

being lodged with the court, (b) fixes seisin to the point of time when the document is received by the authority responsible for service. Which authority bears such responsibility must be determined by the domestic law of the respective legal system. (b) does not interfere with competences under any given national system. 2. Concept of retroactivity 36 The particularity of Art. 16 is that the rule employs a concept of retroactivity (or in German:

Rückwirkungslösung).112 The first of two acts matters (and this first act alone) if the second follows suit. The application becomes pending retroactively at the date when the first act was completed. This is the earlier point of time. When exactly the second act is accomplished is irrelevant as long as the second act can be regarded as subsequent. Courts and lawyers must not misconceive and misread Art. 16. Art. 16 does not establish that the application becomes pending at the date when the second act is completed113 but travels back in time to the date of the first act. This might prove all important in a mutual race to the courthouse by the spouses.

37 To determine the order in time as to which act has to be the first is left to the national law. But

the basic concept, the punchline “first act if subsequent plus”, is established by Art. 16 autonomously. The retroactivity encompasses some fictitious element insofar as retroactivity requires the second act to be accomplished but then declares the first act to be the only act relevant for the purposes as to determine as to when the court was seized. Insofar each branch of Art. 16 contains a proviso or condition which should be regarded not as a suspensive, but as a resolutive condition since otherwise the element of retroactivity would not gain its proper weight.114

38 The definition chosen prevents in any event the applicant from becoming idle after doing

the first step. If the applicant pursues the sole goal to effectively block an application by the other party, he cannot stop after the first step but must at least accomplish the other necessary steps for proper service or proper lodging. Mere inactivity after filing but before seisin must not block an application by the other party.115 109

110 111 112

113 114 115

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P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 34; M.H. v. M.H. (Case C-173/16), ECLI:EU: C:2016:452 para. 27. Lupoi, ZZP Int. 8 (2002), 149, 168. Lübbert, ERA-Forum 1/2003, 18, 24. See only Christian Kohler, in: Gottwald (ed.), Revision des EuGVÜ/Neues Schiedsverfahrensrecht (2000), p. 1, 25; Dilger, in: BBGS, Art. 16 note 4 (2005). But cf. Cassaz. RDIPP 2008, 156, 159. Crawford, (2005) 54 ICLQ 829, 839 et seq. See only Urs Peter Gruber, FamRZ 2000, 1129, 1133; Strohal, juris-PraxisReport 2005, 85, 86.

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Yet establishing a common definition does not constitute more than some kind of common 39 framework. In detail, it is still up to national law to determine when a matter becomes pending, at least insofar as the question is at stake whether (a) or (b) is the relevant alternative under Art. 16. Art. 16 still is bifurcated in order to do justice to the existing and differing procedural systems of the Member States.116 A court is also charged with the intricate task to investigate as to whether its counterpart in the other country was seized first or second according to the autonomous notion of seisin but referring for the details which step has to be taken first, of the national law of the other forum.117 It must not remit such questions to the other court.118 3. Necessary measures Which measures are necessary to be taken is determined by the national law of the forum.119 40 E.g. under German law the matter is determined pursuant to § 270 (3) ZPO or § 167 ZPO and the respective case law.120 In order to effect service on the respondent, the applicant must thus name the respondent’s correct address, provide necessary copies of the application, pay legal fees and costs in advance according to § 9 (1) FamGKG121 or, if legal aid is sought for, apply for such legal aid in a formal manner providing all necessary information about his financial circumstances.122 As to the respondent’s address the applicant must identify it as well as he ever can. It might be questionable whether it is sufficient to simply provide the address of the respondent’s former attorney if that attorney has formally laid down his mandate and his previous power of attorney.123 If it is not known as to whether the power of attorney as valid in previous proceedings is renewed or maintained the applicant must investigate the matter as far as possible.124 When the applicant initially fails to comply with the requirements imposed upon him by the lex fori the matter does not become pending; but when the applicant subsequently complies the point of time of such compliance is relevant.125

116 117

118

119

120

121

122

123 124 125

Crawford, (2005) 54 ICLQ 829, 839. See C v. C (Brussels II: French conciliation and divorce proceedings) [2005] 2 FLR 14, 22 et seq. (F.D., Roderic Wood J.). C v. C (Brussels II: French conciliation and divorce proceedings) [2005] 2 FLR 14, 36 (F.D., Roderic Wood J.). See only Urs Peter Gruber, FamRZ 2000, 1129, 1133; Hausmann, EuLF 2000/01, 345, 346; Hausmann, A note 99; Spellenberg, in: Staudinger, Art. 16 note 11; Simotta, in: Fasching/Konecny, Art. 16 note 11 with further references; Daniel Schäuble, in: Althammer, Art. 16 note 6. Urs Peter Gruber, FamRZ 2000, 1129, 1133, Hausmann, A note 100; Hüßtege, in: Thomas/Putzo, Art. 16 note 5. See only Spellenberg, in: Staudinger, Art. 16 note 11; Hausmann, A note 100; Daniel Schäuble, in: Althammer, Art. 16 note 7. Urs Peter Gruber, FamRZ 2000, 1129, 1133; Simotta, in: Fasching/Konecny, Art. 16 note 22; Hausmann, A note 100; Hüßtege, in: Thomas/Putzo, Art. 16 note 5. KG NJW-RR 2005, 881. See KG NJW-RR 2005, 881. Geimer, in: Zöller, Art. 16 note 6; Daniel Schäuble, in: Althammer, Art. 16 note 7.

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41 Time limits imposed by national law are to be observed.126 If national law does not limit the

time for attempting service, avoiding undue delay and acting with appropriate speed should be the yardstick.127 If the initial application suffers from formal or substantive flaws and if the court orders the applicant to cure these flaws the applicant must abide to such order within any time so ordered by the court.128 In this event only lodging the amended application concludes the applicant’s efforts.129 As to the necessary steps to be taken, Art. 16 refers to the national law of the forum and does not establish an autonomous solution. This reference includes time limits, be they imposed by law or by court order. Thus it should not be said that if the applicant attempts at curing initials defaults after a time limit has lapsed, the matter becomes pending at the point of time when the initial flaw was “cured”.130 Arguably, it is not necessary that service was eventually effected once the applicant had taken the necessary (and generally appropriate) steps to effect service.131 However, issuing a petition but keeping it in a safe or in secret afterwards should not suffice for compliance.132 42 If the court is charged with effecting service upon the respondent once it is lodged with the

application the applicant is not required to make any further effort than to trigger such obligation by the court. If the court in turn serves the application upon the respondent everything is done and (a) is complied with.133 43 The most pressing burden on the applicant will often and regularly be to pay costs in

advance. If the procedural rules of the forum require the applicant to pay costs to the court in advance and the applicant does not comply with this requirement, he has failed to take the necessary steps.134 He may substitute such payment with a timely application for legal aid, though, but must in due course reason that application and name the grounds why he should get legal aid. If he fails to do so, he fails do take the necessary steps, too.135 An application for legal aid might be a substitute for putting up the costs effectively, but it has to comply with all formal and material requirements established by the lex fori in order to exert this function.

44 The efforts by the applicant are the only relevant matter. Their success and whether they are 126

127

128 129

130

131

132

133

134 135

208

Spellenberg, in: Staudinger, Art. 16 note 12; Rauscher, in: Rauscher Art. 16 note 7; Simotta, in: Fasching/ Konecny, Art. 16 note 12. Spellenberg, in: Staudinger, Art. 16 note 15; Rauscher, in: Rauscher Art. 16 note 8; Simotta, in: Fasching/ Konecny, Art. 16 note 13. Simotta, in: Fasching/Konecny, Art. 16 note 24. See only Urs Peter Gruber, FamRZ 2000, 1129, 1133; Dilger, in: BBGS Art. 16 note 7 (2005); Simotta, in: Fasching/Konecny, Art. 16 note 25. Contra Dilger, in: BBGS Art. 16 note 7 (2005); Hausmann, A note 101; Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 16 note 6; Hüßtege, in: Thomas Putzo, Art. 16 note 3. WPP Holdingy Italy v. Benatti [2007] EWCA 263 [65], [96], [2007] 1 FLR 2316 (C.A., per Toulson L.J. and Sir Anthony Clarke M.R.); Daniel Weiner v. Cecilia Weiner [2010] EWHC 1843 (Fam) [42], [2011] 1 FLR 372 (F.D., Holman J.). Open on the facts of the case Daniel Weiner v. Cecilia Weiner [2010] EWHC 1843 (Fam) [43], [2011] 1 FLR 372 (F.D., Holman J.). Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6907 para. 31. Andrae, ERA-Forum 1/2003, 28, 52; Strohal, juris-PraxisReport 2005, 85, 86. Strohal, juris-PR BGHZivilR 2005, 85, 86.

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successful at all is irrelevant. When the respondent gained knowledge that proceedings have been instituted is irrelevant once the applicant has completed all necessary measures with which he is charged.136 “Failed” appears to imply that the applicant missed out on the necessary steps with some 44a degree of negligence.137 It appears to imply that the notion should not be construed as some kind of strict obligation not requiring negligence. For instance, the applicant does not act negligently if he does not undertake the necessary steps in order to wait for the possible result of a formal reconciliation procedure which has been commenced before the court.138 Tactically, this might open up interesting opportunities to bring a generally unwilling respondent to the negotiation table for fear that the applicant might accomplish his threat to fulfil the necessary steps for seisin.139 However, one should not revert to culpa in a technical sense but rather stick with a concept 44b as to whether any delay can be attributed to the applicant’s conduct.140 This would cover also active conduct like applying for a stay of the proceedings, not only failures to take necessary steps.141 The applicant “fails” in any event if he submits incomplete or imprecise documentation on the replicant’s person or address.142 4. “Subsequent” a) General considerations The applicant is required to take the necessary second step (as required by the lex fori) 45 “subsequently”. The applicant may not adopt the strategy to “file and forget” and would not get rewarded for such strategy by successfully blocking the other proceedings.143 The applicant must act timely and must not become idle. Only the diligent applicant will get rewarded by seeing the blocking success of his application.144 “Subsequent” marks an autonomous concept and should in the outset not be measured by national, but by Community yardsticks. It would be fallible to read “subsequent” as establishing a fixed period of time after the lapse 46 of which further steps are belated and doomed. Nothing in “subsequent” can be read as “two weeks”, “four weeks” or “two months”. If EU legislation had gone for establishing some kind of fixed deadline related to the completion of the first act required it could have done so. But exactly that did not happen. Likewise, “subsequent” must not be read as “with the utmost speed”. Instead, Community legislation opted for an open concept apt to span a variety of cases and appropriate to give due consideration to the material circumstances in each case. 136

137 138 139 140 141 142 143 144

A-G Kokott, [2009] ECR I-6874, I-6880 para. 21; cf. also Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6907 para. 31. P v. M (Case C-507/14), ECLI:EU:C:2015:512 paras. 39, 43; Mankowski, FamRZ 2015, 1865, 1866. P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 43. Mankowski, FamRZ 2015, 1865, 1866; Nordmeier, IPRax 2016, 329, 334. Nordmeier, IPRax 2016, 329, 332. Nordmeier, IPRax 2016, 329, 331. Nordmeier, IPRax 2016, 329, 333. LGZ Wien ZfRV 2015, 173; Ofner, ZfRV 2015, 173. LGZ Wien ZfRV 2015, 173.

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47 The necessity to translate documents or legal texts or to use specific forms might allow for a

more generous space of time before a step taken eventually might be regarded as not “subsequent” anymore. b) Implicit reference to time limits under the lex fori

48 That “subsequent” is an autonomous concept does not rule out an important reference to

national law: If the second step required by the lex fori was accomplished within any time limit set by the lex fori it should also be deemed “subsequent” for the purposes of Art. 16.145 It would be highly irritating if a step which is regarded as being in time by the set of rules requiring it, was condemned under Art. 16. Frictions with national law should be avoided in this regard wherever possible. Insofar, the Community concept is open enough to include an implicit reference to, and interaction with, the relevant national law. The applicant must be allowed to use the time limit established by the lex fori up to the last minute.146 The applicant must be permitted to consume any time allowed for. The applicant is not pressed upon by EU law to act more expeditiously than under national law.147 In particular, the applicant is not called to act without undue delay if the lex fori allows for some weeks or even months to lapse before certain steps are time-barred.148 Art. 16 does not shorten the time allowed by any means.

49 On the other hand, Art. 16 does not extend time limits as to be found in the lex fori. Art. 16

does not contain enough substance as to allow for an extension of existing national time limits. In principle, Art. 16 can be read as implicitly referring to time limits of the lex fori insofar as subsequent steps are required. “Subsequent” is an open standard, and if it can get structured by national time limits the better. The phraseology of Art. 16 does not bar such supplementary reference. c) Other yardsticks 50 The implicit reference to national law does not provide a helping hand where the national in

question has not established any time limits. Then the paramount consideration should be that the applicant must not let lapse time unduly149 without any proper justification. Insofar, the duration of time lapsed and the applicant’s conduct must be taken into account. The applicant must not be blamed and punished for shortcomings for which the applicant is not accountable and for which the applicant does not bear any responsibility. In particular, the applicant must not be blamed for shortcomings in the judicial system of the forum state or in any other state. If the State in question fails to act with the desirable speed whilst interacting with the applicant (e.g. if officers of the court fail to demand legal costs if the lex fori opted for express demands to be required) the applicant has done what the applicant could possibly do. Failures and shortcomings on the part of official bodies exempt the applicant from responsibility for any delay which occurred due to such failures and shortcomings.150

145 146 147 148 149 150

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Spellenberg, in: Staudinger, Art. 16 note 12; Rauscher, in: Rauscher, Art. 16 note 3. Spellenberg, in: Staudinger, Art. 16 note 12; Rauscher, in: Rauscher, Art. 16 note 3. Spellenberg, in: Staudinger, Art. 16 note 12; Rauscher, in: Rauscher, Art. 16 note 3. Spellenberg, in: Staudinger, Art. 16 note 12; Rauscher, in: Rauscher, Art. 16 note 3. Spellenberg, in: Staudinger, Art. 16 note 15; Rauscher, in: Rauscher, Art. 16 note 3. Spellenberg, in: Staudinger, Art. 16 note 13.

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Materially, the applicant must not be allowed to block other jurisdictions by applying in one 51 jurisdiction and afterwards failing to pursue the necessary steps; the applicant must not gain any bargaining chip (in the course of negotiations over divorce agreements) by a clearly preemptive strike that was not duly followed up afterwards.151 The most intricate case unveils in the event that the applicant has not complied with a time 52 limit as established under the lex fori but has taken the necessary steps only shortly after such time limit had lapsed. Generally, the applicant then should be blamed and be held responsible. The applicant had some time (regarded as appropriate and sufficient by national legislation) to accomplish the feat required. Even if the applicant was fighting an away game outside his own home state, this has to hold true not the least since nobody else than the applicant chose the forum. d) Consequences of a lack of subsequent steps If the applicant fails to let the necessary steps follow subsequently, the effect of lis pendens as 53 explained in Art. 19 ceases.152 This happens without regard as to what the lex fori says.153 But there is no express rule to the effect in time: Becomes the case not pending anymore ex nunc or ex tunc? Since the notion of lis pendens is an autonomous notion of EU law the answer must be given by EU law, too. The effet utile of Art. 16 makes one inclined to believe that the effect of lis pendens should cease ex tunc, i.e. retroactively, and that the matter should be treated as not pending at any time in the court where the applicant failed to take the necessary steps. This might be fortified by the use of “provided that” in the wording of both litterae of Art. 16. This wording implies that taking the necessary steps subsequently is a condition-precedent for the court to be deemed seized. If a condition-precedent is not fulfilled it must be concluded that the consequence conditioned does not follow. The retroactive moment is inherent in the entire construction of Art. 16 and should does not cause major concerns. V. Sorting the national laws Which national law comes under which head, i.e. whether a national law comes within the 54 ambit of lit. a or lit. b must be decided according to the features of the respective law. Every court has to ascertain by its own law as to which steps and in which order are necessary to complete seisin before it. On the other hand, neither court must apply its own law to the question under which conditions and prerequisites its counterpart in another country is seized. This second question is exclusively governed by the other court’s law. Employing pointed language, States coming under lit. a can be circumscribed as file-and- 55 serve states and States coming under lit. b as serve-and-file states.154 Alternative terminology reads issue-then-serve for (a) and serve-then-issue for (b).155

151 152 153 154 155

Spellenberg, in: Staudinger, Art. 16 note 14; Rauscher, in: Rauscher, Art. 16 note 3. Supported by Malatesta, in: Corneloup, Art. 16 note 13. Spellenberg, in: Staudinger, Art. 16 note 15. Briggs, (2005) 76 BYIL 641, 655. Daniel Weiner v. Cecilia Weiner [2010] EWHC 1843 (Fam) [3], [2011] 1 FLR 372 (F.D., Holman J.).

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56 Amongst the national laws qualifying for lit. a are i.a. Dutch law,156 German law,157 English

law and Swedish law.158 57 Amongst the national laws qualifying for lit. b are i.a. French law and Italian law.

VI. Mandatory attempts for reconciliation 58 Difficulties may arise if the lex fori requires parties to undertake efforts for reconciliation as

many Romanic legal orders do.159 Such an application does not establish any lis pendens effect as far as the matrimonial proceedings as such are concerned. Lis pendens is only brought about if a mandatory application for reconciliation is designed, with respect to the matrimonial proceedings, as a “dependent” or ancillary action.160 Yet attempts to reconcile the spouses which are embedded in ordinary divorce proceedings after these proceedings have commenced (as it might be the case for instance in Greece pursuant to Art. 602 Greek Code of Civil Procedure) do not pose any problems since then still the divorce proceedings as such are the only relevant proceedings.161

58a Nor do independent reconciliation proceedings, stand alones without inherent formal con-

nection with any divorce proceedings, pose a problem: In these cases there are simply not any divorce proceedings which might become pending. Only divorce proceedings eventually brought after the failure of such voluntary reconciliatory attempts have failed would matter.162 59 French law nurtures a peculiarity insofar as in matters of divorce it establishes some kind of

two-tier procedure, the first period consisting of attempts to evaluate whether there could be any possibility to reconcile the parties (procédure de conciliation). Only after conciliation failed and an ordonnance de non-conciliation was issued the demande de divorce may be filed. Nevertheless the procedure should be judged as a unitary one and an entity and unity overall. Hence, the initial application instituting the proceedings as such, the requête initiale, is, and must be, regarded as the sparking element,163 not the transgression to the second

156 157 158 159

160

161

162

163

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Rb. ’s-Gravenhage NIPR 2007 Nr. 112 p. 161; Aud. Prov. Barcelona AEDIPr 2008, 880. Trib. Belluno RDIPP 2011, 727, 729. Daniel Weiner v. Cecilia Weiner [2010] EWHC 1843 (Fam) [3], [2011] 1 FLR 372 (F.D., Holman J.). See for instance Arts. 251 et seq. Code civil in France; Art. 4 legge 898/1970 in Italy; Art. 1774 Codigo civil in Portugal and Art. 238 Code civil in Luxembourg. The information meeting pursuant to sec. 8 (2) Family Law Act 1996 lacks the nature of a strict and mandatory prerequisite for divorce proceedings. Urs Peter Gruber, FamRZ 2000, 1129, 1132, 1134; Hausmann, A notes 102, 128; Althammer, in: Althammer, Art. 19 note 5. Polyzogopoulos, in: Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 133, 147 et seq.; see also Rauscher, in: Rauscher, Art. 16 note 4. Hausmann, A note 102; Rauscher, in: Rauscher, Art. 16 notes 9–10; Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 16 note 7. Cass. Bull. civ. 2006 I N°. 374 p. 320, 322; Cass. Bull. civ. 2006 I N°. 375 p. 322, 323; Gallant, in: BoeleWoelki/Ginzález Beilfuss p. 103, 110; Malatesta, in: Corneloup, Art. 16 note 7; Monéger, in: Corneloup, Annexe à Art. 16 notes 6–15; see also Bonomi, Riv. dir. int. 2001, 298, 335.

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period, the assignation, namely the judicial procedure in a narrower sense.164 This solution appears acceptable since the respondent is informed and alerted already by the initial summons.165 As a more general issue of legal policy, the contrary conclusion would be inane since it would mean that an applicant who started in a system which required mediation or conciliation before trial could never be sure of having started first as his opponent would have a window of opportunity to start proceedings in another Member State.166 If French courts should reach the opposite conclusion that as a matter of proper characterisation only the issue of the assignation amounted to an initiation, it would seem imperative that France amends its internal proceedings to ensure that the first manifest step, even if only be a step, towards a conciliation process, constitutes initiation.167 The particularities of French divorce proceedings have proven to become the major test case anyway.168 Seen in the wider context, it might not be absolutely necessary169 to depend on the initial 60 summons as the relevant document in order to avoid a race to the courthouse.170 Attempts to conciliate should at least to a certain degree be taken on face value as not to aim at dissolving the bond of marriage, but genuinely and truly attempting at reconciling the partners at the verge of breaking off their marriage.171 On the other hand it would be unwise to overemphasise this and to derive from it that such attempts could never form part of divorce proceedings, though.172 The Salomonic way through the middle culminates in the conclusion that the inclusion of reconciliatory attempts might depend on whether the respective lex fori itself regards them as integral parts of divorce proceedings.173 To strictly exclude reconciliatory attempts from the concept of seisin even if such attempts 61 are mandatorily required by the lex fori would do grave injustice and destroy the balance. That at the moment when the reconciliatory measures are taken it is not fully clear as to whether genuine court proceedings will follow afterwards174 must not result in disregarding at least integral attempts. It cannot be denied that reconciliatory attempts if they are mandatory and under the guidance of the court indicate formal proceedings and – even more 164

165 166 167 168

169 170 171 172

173

174

CA Aix-en-Provence Procédures 4/2005, 22; Chorley v. Chorley (2005] 2 FLR 38, 45 (C.A., per Thorpe L. J.); Urs Peter Gruber, FamRZ 2000, 1129, 1132; Boele-Woelki, ZfRV 2001, 121, 126; Lübbert, ERA-Forum 1/2003, 18, 23 et seq. Contra Polyzogopoulos, in: Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 133, 148. Nourissat, Procédures 4/2005, 22, 23. Briggs, (2005) 76 BYIL 641, 655. Chorley v. Chorley [2005] 2 FLR 38, 45 (C.A., per Thorpe L.J.). See Cass. Defrénois 2006, 1767 obs. Massip = AJ fam. 2006, 460 obs. Boiché = Procédures 2007 n°.190 note Nourissat = Gaz. Pal. 29 avril 2007, p. 28 note Marie-Laure Niboyet; RJPF nov. 2016, p. 21 obs. Garé; Cass. 26 june 2013 – Case n° 12-24001; Chalas, RCDIP 2016, 387, 394. But cf. Boele-Woelki, ZfRV 2001, 121, 126; Schlosser Art. 11 note 4. Rauscher, in: Rauscher, Art. 16 note 5. Rauscher, in: Rauscher, Art. 16 note 5. Rauscher, in: Rauscher, Art. 16 note 6. Contra Gottwald, in: Münchener Kommentar, Art. 11 EuEheGVO note 9. Urs Peter Gruber, FamRZ 2000, 1129, 1134; Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 16 note 7; Hüßtege, in: Thomas/Putzo, Art. 19 note 3; Rauscher, in: Rauscher, Art. 16 note 6; cf. also Simotta, in: Fasching/Konecny, Art. 16 note 18. See ArbG Mannheim IPRax 2008, 37 et seq.; AP Barcelona 26 June 2007 – Despido 304/2007-C.

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importantly – bar formal proceedings from being instituted in the respective country.175 As an issue of legal policy, the excluding approach would be inane since it would mean that an applicant who started in a system which required reconciliatory attempts before trial could never be sure of having started first, as his opponent would have a window of opportunity to start proceedings in another Member State.176 62 The next step are reconciliatory attempts ordered by a court which are mandatory upon that

court order, For instance, in England parties may be directed to mediation or ADR. Then the original institution of proceedings should be the relevant date.177 Steps in the process of civil litigation are rarely automatic, but depend on the parties’ will to make progress.178 VII. Other aspects of seisin outside Art. 16 63 Although Art. 16 determines when a court becomes seized, there is no indication as to when a

court ceases to be seized. Principle suggests that a court will no longer be seized where179 it has dismissed proceedings, for want of jurisdiction or (presumably) because a claim is inadmissible on the basis that it is an abuse of process.180 Similarly, a court will no doubt cease to be seized where a claimant has sought successfully to have proceedings discontinued, and where it has given judgment on the substance of a dispute (although that judgment will no doubt be enforceable, making proceedings on the same matter pointless).181 VIII. Officially instituted proceedings

64 Some proceedings might be initiated not upon the motion of any party, but officially. The

court might commence such proceedings on its own motion, ex officio as required and demanded by the yardstick of its own lex fori. Such might be far more likely in care proceedings than in divorce proceedings. Art. 16 does not apply on the point of time when such proceedings are deemed to commence. It relates to party-initiated proceedings and party activities. Nonetheless, it is necessary to determine the relevant point if time for officially initiated proceedings might happen to collide with other proceedings (be that party or officially initiated) with the principle of lis pendens serving as the tie-breaker.

65 The relevant point in time might be the point in time when the court first took officially

notice of the matter as documented in its files.182 In the event that the respective lex fori requires decisions on matters of parental care to be made ex officio in the context of divorce proceedings the point in time when the divorce proceedings became be pending might be deemed decisive.183 A systematically very elegant solution would be to resort to Art. 14 (c) 175 176 177 178 179

180 181

182

214

See Stumpe, IPRax 2008, 22, 24. Briggs, (2005) 76 BYIL 641, 655. See Briggs, (2005) 76 BYIL 641, 655. Briggs, (2005) 76 BYIL 641, 655. E.g., in English law, where proceedings are vexatious, scurrilous, ill-founded, or otherwise an abuse of process: CPR, r. 3.4 (2) (b). Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 6. Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 6; Simotta, in: Fasching/Konecny, Art. 16 note 28. Hausmann,B note 197; Rauscher, in: Rauscher, Art. 16 note 2.

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Successions Regulation184 at least as circumscribing some general principle if that rule was not applied to be per analogiam.185 This rule reads: “A court shall be deemed to be seized […] (c) if the proceedings are opened of the court’s own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.” Article 17: Examination as to jurisdiction Where a court of a Member State is seized of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

Bibliography Grunsky, Rechtsfolgen des Fehlens der internationalen Zuständigkeit nach dem EuGVÜ, in: FS Hilmar Fenge (1996), p. 63 Schoibl, Die Prüfung der internationalen ZustänI. II.

Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Conditions precedent 1. Lack of jurisdiction of the court seized a) Lack of jurisdiction pursuant to Arts. 3–6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 b) How do Arts. 7 (1) and 14 fit into the system? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

digkeit und der Zulässigkeit des Verfahrens nach dem Brüsseler und dem Luganer Übereinkommen, in: FS Rolf A. Schütze (1999), p. 777.

III.

IV. V.

2. Jurisdiction of a court in another Member State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Examination ex officio 1. Examination of jurisdiction . . . . . . . . . . . . 21 2. Ascertaining (and proving) facts . . . . . . . 24 Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 “Negativer Kompetenzkonflikt” . . . . . . . . . . 32

I. Ratio legis Art. 17 is to the letter identical to Art. 9 Brussels II Regulation. It resembles, and is some kind 1 of counterpart to, Art. 19 Brussels Convention, afterwards Art. 25 Brussels I Regulation and now Art. 27 Brussels Ibis Regulation plus Arts. 10 Maintenance Regulation; 15 Succession Regulation. Its ratio legis is to ensure and safeguard compliance with the jurisdictional regime of the Regulation.1 Yet taking into account that the catalogue of equivalent heads of exclusive jurisdiction under the Brussels IIbis Regulation is way more extensive than the one provided for in Arts. 24 Brussels Ibis Regulation; 22 Brussels I Regulation, Art. 17 has to restrict the statement of Arts. 27 Brussels Ibis Regulation; 25 Brussels I Regulation consid183 184

185 1

Hausmann,B note 197; Urs Peter Gruber, in: Nomos Kommentar BGB Art. 16 note 8. Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ EU 2012 L 201/107. Daniel Schäuble, in: Althammer, Art. 16 note 8. See only Simons, in: Corneloup, Art. 17 note 2.

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erably. A court has to declare of its own motion that is has no jurisdiction only if it itself is incompetent and if a court in another Member State has jurisdiction. Art. 17 requires a court not to trespass on the exclusive jurisdiction of another court2 if it does not have equivalent jurisdiction of equal rank itself. 2 The conflicts rules of the Member State not being uniform or harmonised yet, forum might

become even more relevant in the context of the Brussels IIbis Regulation than it is in general or under the Brussels I Regulation. The incentives to try a forum must not be neglected and are in general more relevant than under the Brussels I regime.3 Accordingly, Art. 17 aims at fighting such incentives and at protecting the jurisdictional system of the Brussels IIbis Regulation against attempts to circumvent it.4 The verification of jurisdiction generates a duty to check jurisdiction closely intertwined with the principle of free movement of judgments and the solution provided for parallel proceedings.5 It can be said to be an inherent general principle in European law stemming from the principle of mutual trust which in turns disallows courts from reviewing the assessment made by the first court as to its jurisdiction either at the stage of recognition or enforcement of judgments or at the stage of lis pendens, thus avoiding the risk of conflicting and irreconcilable statements on the jurisdiction issue.6 3 Art. 17 makes it crystal-clear that the heads of jurisdiction cannot be disposed of by the

parties. On the other hand, Art. 17 rules out any freedom of disposition even where cooperative spouses and partners might want to proceed jointly.7 It is mandatory and applies whether or not there are extant proceedings in the courts of the other Member State.8 Art. 17 applies not only at first instance, but also in appeal proceedings before higher instances.9 4 Originally and genetically, the rule was believed to help cure the phenomenon of forum

shopping.10 It was intended to discourage applicants from exploiting the differences between the legal systems of the Member States in seeking to obtain a favourable outcome by “choosing” a particular court.11 Yet such belief is rather misconceived. Forum shopping does not arise (or better: can eventually be cured provided the respondent makes the applications deemed necessary by the respective jurisdictional regime) if the court seized lacks jurisdiction. Art. 17 only adds the element that the court must clear the matter of its own motion, i.e. that an application by the respondent is not required.12 It does not provide any remedy for the problem that with an extensive catalogue of possible jurisdictions designated the courts in any of these jurisdictions can hear the matter. Art. 17 is not concerned with the case of 2 3 4 5 6 7 8

9 10 11 12

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See Briggs, (2003) 74 BYIL 525, 527. Rauscher, in: Rauscher, Art. 17 note 1. Rauscher, in: Rauscher, Art. 17 note 1. Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 223. Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 224 et seq. Rauscher, in: Rauscher, Art. 17 note 1. Re B (A Child) [2013] EWCA Civ 1434 [80], [2014] 1 Fam 139, [2014] 2 WLR 1384 (C.A., per McFarlane L.J.); In re E (A Child) [2014] EWHC 6 (Fam) [29], [2014] 1 WLR 2670 (F.D., Sir James Munby P). Rauscher, in: Rauscher, Art. 17 note 18; Hausmann, A note 105. Report Borrás para. 49. Report Borrás para. 49; Simons, in: Corneloup, Art. 17 note 2. Report Borrás para. 49. See in more detail infra Art. 17 notes 21–23 (Mankowski).

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truly competing jurisdictions, or more precisely, Art. 17 is concerned with this only insofar as in the event of truly competing jurisdictions the court originally seized still can pursue the proceedings pending before it.13 Obliging this court to check its jurisdiction will not alter the affirmative result but rather produce it. On the other hand, forum shopping becomes a genuine problem only if and insofar as all 5 courts concerned and in particular the court originally seized do have jurisdiction if jurisdiction is ascertained according to the respective jurisdictional rules. Art. 17 is not concerned with precisely this. Hence, the hope to provide some remedy for the really troubling kind of forum shopping by introducing Art. 17 is quite vain a hope.14 Art. 17 is a rather complicated and multi-faceted rule playing a role in different contexts not 6 easily to be reconciled with each other. Intrinsically, it also is invisibly wired with, and linked to, Art. 7 (1):15 According to Art. 7 (1), where no court of a Member State has jurisdiction pursuant to Arts. 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State, by the lex fori. But if different actions are already pending the forum must oblige to Art. 17 and declare of its own motion that it has no jurisdiction, in favour of the court in the other Member State competent by virtue of Art. 3.16 Art. 7 (1) is of lesser rank than Arts. 3–5; if somewhere else than in the State of the forum actually seized jurisdiction can be based on some head of jurisdiction contained in Art. 3, 4 or 5, the applicant is invited to lodge its application there. Unfortunately, even within the EU a court generally does not have the means to transfer the 7 case directly to a court in another country. Only Art. 19 (3) 2 and Art. 15 are some (but only some)17 kinds of an exception to this rule.18 Art. 17 is an attempt of an answer to the problem, but only the negative part that the case cannot be heard before the court actually seized. A court must not deprive a court in a fellow Member State of hearing the case if its own jurisdiction cannot be based on Community rules. For the applicant this might be to his detriment with regard to costs, negative Kompetenzkonflikte (negative conflicts of jurisdictions) and possibly time bars.19 If one is poised to detect some general, political problem with the approach taken very much 8 depends on how much sympathy one has with the jurisdictional regime of the Brussels IIbis system: He who deems this regime insensitive and unconvincing, will nurse a grudge against Art. 17, too.20 The personal evaluation of the protected object heavily influences the personal

13 14 15

16

17

18 19 20

See in more detail infra Art. 17 note 9 (Mankowski). Spellenberg, in: Staudinger, Art. 17 note 3. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo, (Case C-68/07) [2007] ECR I-10403, I-10414 et seq. paras. 19 et seq.; Spellenberg, in: Staudinger, Art. 17 note 2. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo, (Case C-68/07) [2007] ECR I-10403, I-10414 et seq. para. 20. Even these rules do not allow for a transfer in the technical sense but request the applicant to renew his application in the other State with some guarantees of the other court hearing the case eventually. McGuire, ZfRV 2005, 83, 84. Grunsky in: FS Hilmar Fenge (1996), p. 63, 66–68. Rauscher, in: Rauscher, Art. 17 note 2.

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evaluation of the protecting measure. However, it cannot be denied that Art. 17 is a consistent measure if one wants to protect the jurisdictional system. II. Conditions precedent 1. Lack of jurisdiction of the court seized a) Lack of jurisdiction pursuant to Arts. 3–6 9 First and utmost, in order to render Art. 17 operative the court actually seized must lack

jurisdiction. The court is not invited to drop the case unless it has no competence to hear it. Jurisdiction existing and vested in the court actually seized is not erased by virtue of Art. 17. The yardstick against which the existence of such jurisdiction is to be measured are the heads of “jurisdiction under this Regulation” as the wording points out. Arts. 3–6 are clearly covered by this internal reference since they directly spell out the respective heads of jurisdiction in the Regulation itself. Art. 17 finally secures the precedence of the Regulation regime over rules of national law, particularly such rules which express a preference for a forum nationalitatis.21 9a Jurisdiction for the purposes of Art. 17 means international jurisdiction only; matters of

local jurisdiction or venue are not addressed, but left to the national law of the deciding Court.22 b) How do Arts. 7 (1) and 14 fit into the system? 10 Yet the question might arise as to how Arts. 7 and 14 fit into the system and whether Arts. 7

and 14 can also be deemed to be referred to by Art. 17. Perhaps it is advisable to reformulate the question posed: Has “jurisdiction under this Regulation” in essence to be read as “jurisdiction under Articles 3 to 6 (or Articles 8 to 13 respectively)”,23 or is residual jurisdiction based on the lex fori by virtue of Arts. 7 or 14 of equal rank and can be deemed as imported and forming part of the jurisdictional system of the Regulation? 11 In favour of the latter solution the argument is put forward that to decide else would lead to

insensible and untenable results.24 Allegedly, a court which bases its jurisdiction justifiedly on national law via Art. 7 or Art. 14 should not be buying into ceasing in favour of a court in another Member State since Arts. 3–6 or Arts. 8–13 cannot be said to be of exclusive nature in that constellation.25 12 Additionally, the situation under Arts. 28 Brussels Ibis Regulation; 26 Brussels I Regulation

is invoked.26 There “jurisdiction (…) derived from the provisions of this Regulation” is thought to include jurisdiction based on provisions of national law referred to by Art. 6 (1) Brussels Ibis Regulation; 4 (1) Brussels I Regulation.27 But this does not go conform with, 21 22 23

24 25 26

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Boiché, Gaz. Pal. 2005, 1641, 1643. Simons, in: Corneloup, Art. 17 note 11. To this avail e.g. Geimer, in: Zöller, Art. 17 note 2; Daniel Schäuble, in: Althammer, Art. 17 note 3; Simons, in: Corneloup, Art. 17 note 15. Rauscher, in: Rauscher, Art. 17 note 7; cf. also AG Steinfurt IPRspr. 2008 Nr. 150 p. 497. Rauscher, in: Rauscher, Art. 17 note 7. Rauscher, in: Rauscher, Art. 17 note 7.

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Chapter II: Jurisdiction

Article 17

and in fact is contrary to, the very wording of Arts. 28 Brussels Ibis Regulation; 26 (1) Brussels I Regulation. This provision expressly restricts its scope of application to cases where the defendant has its domicile in the EU whereas Arts. 6 (1) Brussels Ibis Regulation; 4 (1) Brussels I Regulation only comes into operation if the defendant is not domiciled within the EU. Arts. 28 Brussels Ibis Regulation; 26 (1) Brussels I Regulation does not protect defendants without a domicile in the EU.28 If anything can be gained from Arts. 28 Brussels Ibis Regulation; 26 (1) Brussels I Regulation at all, it does certainly not support the reported contention. Thirdly, the linguistic difference between “under this Regulation” and “by virtue of this 13 Regulation” in the wording of (1) is said to get some explanation if “under” includes Art. 7 (1) whereas “by virtue of” does not.29 Massive doubts about the validity of this reasoning remain, though. This reasoning overstretches and overdoes a small and rather insignificant difference. “Under” and “by virtue of” should not be regarded as carrying that much weight. At least there is not the slightest indication in the travaux préparatoires that this linguistic difference should carry any weight and should amount to distinguishing. The apparent clash between Art. 7 and Art. 3 could be solved in the way that a court which 14 could base its own jurisdiction solely on Art. 7 should back down if the other court concerned can claim jurisdiction under Art. 3.30 Insofar, Art. 6 can be said to convey exclusivity with apparent consequences for Art. 17.31 In cases of concurring jurisdiction the court must accept and continue the proceedings, 15 though. In this event it does not matter whether a court in another state also has jurisdiction. The doctrine of forum non conveniens32 has not found refuge in, nor favour with, the Brussels IIbis Regulation. The court cannot decline its own jurisdiction if it thinks another forum more suitable or convenient. Every single head of jurisdiction contains a guarantee that jurisdiction can be found in the state designated by the connecting factor employed. Art. 25 becomes inoperable already if the court seized has jurisdiction regardless what can be stated with regard to other courts. 2. Jurisdiction of a court in another Member State Both prerequisites have to be fulfilled cumulatively in order to trigger Art. 17 into operation. 16 The “and” is an exact and strictly cumulating “and”, not a latent or hidden “or”. Hence, if a court lacks jurisdiction it nevertheless cannot dismiss the case by virtue of Art. 17 if no other court in any Member State does have jurisdiction positively. That own jurisdiction to a certain degree is made dependent on others not being vested with jurisdiction by the Com27 28

29 30

31 32

Rauscher, in: Rauscher, Art. 17 note 7. See only Gothot/Holleaux, Clunet 98 (1971), 747, 769; Droz, Compétence judiciaire et effets des jugements dans le Marché Commun (1972) para. 285; Kodek, ZZP Int. 1999, 125, 149; Kropholler/von Hein, Art. 26 EuGVO note 6; Mankowski, in: Rauscher, Art. 26 Brüssel I-VO note 1. Rauscher, in: Rauscher, Art. 17 note 7. Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403, I-10414 et seq. para. 20. OGH unalex AT-554; Simons, in: Corneloup, Art. 17 note 9. On this doctrine in particular Nuyts, L’exception de forum non conveniens (2002).

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munity Act is a peculiarity since generally courts are only concerned with ascertaining their own jurisdiction and not that of courts in other States.33 17 The court seized is confronted with the task to assess as to whether courts in other Member

States have jurisdiction.34 Nevertheless, its assessment is not binding upon the other courts envisaged in any way. They have to ascertain their own jurisdiction de novo and ab initio without being bound by the result previously reached by the court originally seized. Insofar, the court originally seized completes only a hypothetical examination and not the real stuff. Yet it is competent to determine the issue for the purposes of Art. 17 if only approaching the position of the other courts concerned with considerable care.35 It must not remit any questions of the jurisdiction of the other courts concerned to them.36 Accordingly, the judge has to be particularly alert to take proper account of any intra-Community cross-border element the case before him has.37 18 Consequentially, this could possibly lead to diverging opinions as to whether the court

seized later-on has jurisdiction. Yet in the event that the court originally seized declares itself lacking jurisdiction and dismisses the case by virtue of Art. 17 because it beliefs a court in another Member State to have jurisdiction whereas later-on the other court also declines jurisdiction, the case may not be re-opened in the court first seized. That court has finally and conclusively dismissed the case, and for re-opening the case it would lack jurisdiction eventually. 19 Art. 17 is only relevant if the court is competent for the main issue and not only concerned

with a preliminary issue, an incidental question, a side issue or a minor point. The courts are not hampered in deciding such matters since no jurisdiction is required with regard to them.38 20 In the event that no court in the entire EU would have jurisdiction pursuant to the yardsticks

established by the Brussels IIbis Regulation Art. 17 does not require the court seized to dismiss the case.39 Instead, the court seized is invited to assess as to whether its own jurisdiction could be established by virtue of Arts. 6; 7 or Art. 14 respectively, each in conjunction with national law.40

33 34 35

36

37 38 39 40

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Spellenberg, in: Staudinger, Art. 17 note 2. See AG Steinfurt IPRspr. 2008 Nr. 150 p. 497 for a practical example. C v. C (Brussels II: French conciliation and divorce proceedings) [2005] 2 FLR 14, 36 (F.D., Roderic Wood J.). C v. C (Brussels II: French conciliation and divorce proceedings) [2005] 2 FLR 14, 36 (F.D., Roderic Wood J.). Boiché, Gaz. Pal. 2005, 1641, 1643. Rauscher, in: Rauscher, Art. 17 note 12. Dilger, in: BBGS, Art. 17 note 5 (2005). Dilger para. 320; Dilger, in: BBGS, Art. 17 note 5 (2005); Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 17 note 2; Daniel Schäuble, in: Althammer, Art. 17 note 5.

November 2016

Chapter II: Jurisdiction

Article 17

III. Examination ex officio 1. Examination of jurisdiction The court must not wait for an application by either party to examine or review its juris- 21 diction.41 Art. 17 obliges the court to do so on its own motion, i.e. ex officio.42 Special importance is attached to the examination as to jurisdiction carried out automatically by the court of origin, without any need for either party to request so.43 The respondent is not required to invoke lack of jurisdiction.44 This does of course not rule out, or make inadmissible, any respective application to such avail by the respondent. Such application might provide for the igniting spark, but it is not required in the sense of a strict prerequisite. The examination as such has to take place ex officio regardless whether this would be in accordance with the national procedural law of the forum45 or not if Art. 17 did not exist. In the event of the defendant alleging and invoking lack of jurisdiction no recourse to national law should be held, though.46 The shape of the ensuing decision is governed by the lex fori anyway.47 The most important aspect ought to be stressed and emphasised again: Art. 17 establishes an 22 independent responsibility of the court to investigate and determine, of its own motion, in compliance with the Regulation, whether jurisdiction lies with the court or not.48 Spurious petitions should have but a limited life until such time as, on the determination of the preliminary issue of jurisdiction, they are exposed for what they are, and the temporary advantage gained might be offset by the possible consequences in costs.49 Yet the consequences in cost depend on whether there is simply a stay, and on the national law of the forum since the Brussels IIbis Regulation does not contain any rules as to costs. If the application has already reached a higher court by way of appeal, national law generally 23 might venture to impose restrictions as to whether higher courts are allowed to (re-) examine jurisdiction. Yet Art. 17 is binding upon higher courts unequivocally. Whether the court is at first, second or even third instance it has to comply with Art. 17.50 EU law is of a

41

42

43 44

45 46 47 48 49 50

Report Borrás para. 49; Cass. civ. D. 2005, 1459 = JCP 2005 IV 1721; Vlas, Ned. Jur. 2003 Nr. 371 p. 2973, 2974; Sana-Chaillé de Néré, D. 2005, 1459, 1461 et seq.; Dilger, in: BBGS, Art. 17 note 1 (2005). See only Child and Family Agency v. CJ [2015] IECA 86 [42], [2015] 2 ILRM 412, 430 (CA Ireland, per Finlay Geoghegan J.); Rb. ’s-Gravenhage NIPR 2007 Nr. 112 p. 160; Baruffi, in: Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 175, 200; Gardeñes Santiago, AEDIPr 2008, 880, 882. Report Borrás para. 49; Boiché, Gaz. Pal. 2005, 1641, 1643. Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 17 note 1; Hausmann, A note 103; Daniel Schäuble, in: Althammer, Art. 17 note 1. Report Borrás para. 49. Tentatively contra Fulchiron, Dr. & patr. 136 (2005), 34, 40. Simons, in: Corneloup, Art. 17 note 16. See only Rogers-Headicar v. Headicar [2005] 2 FCR 1, 5 (C.A., per Thorpe L.J.). Rogers-Headicar v. Headicar [2005] 2 FCR 1, 5 (C.A., per Thorpe L.J.). Dilger, in: BBGS, Art. 17 note 1 (2005).

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higher rank than national law. Hence, such restrictions if existing would be blasted away by Art. 17 in cases falling within the scope of the Brussels IIbis Regulation.51 2. Ascertaining (and proving) facts 24 One has to distinguish clearly between the legal examination as such on one hand and

ascertaining the facts underlying such examination on the other hand. Art. 17 only regulates the first of these two issues. It does not contain any explicit order as to how the facts ought to be ascertained or as to who has to prove which facts. In particular, Art. 17 does not ask the court to investigate the facts of its own motion.52 The Community rule does not go that far. 25 The objects subjected to the examination by the court of its own motion are determined by

the rules of the national procedural law of the forum seized.53 Therefore e.g. in Germany examination by the court of its own motion does not introduce the principle of official establishment or investigation of facts. The so-called principle of production of evidence (Beibringungsgrundsatz) is still generally applicable if that is demanded by national law.54 The court however has to follow up its own doubts as to its competence even if the parties do not reprimand the lack of jurisdiction. It has to evaluate the existence evidence ex officio.55 But it can only raise evidence ex officio if the national law permits so. It is also for national law to decide as to whether the court can invite the parties to submit further evidence related to the facts necessary in turn to reach proper conclusions as to jurisdiction. If national law orders the court to refrain from such activity for the sake of absolute neutrality, this must also be accepted for the purposes of Art. 17.

26 As can be already discerned from Art. 6 it follows from Art. 17 that under the Brussels IIbis

Regulation in principle the court cannot assume jurisdiction only on the basis that the respondent continues with the trial without contesting jurisdiction.56 In general, there is nothing like a tacit submission under the Brussels IIbis system. The term “recognition of jurisdiction” in Art. 12 (1) (b) has to be interpreted extensively so that that Article establishes a very restricted exception from the principle stated. However Art. 17 does not presuppose for an examination by the court of its own motion and ex officio that the respondent does not enter an appearance.57

51

52

53

54 55 56

57

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See Ferdinand Duijnstee v. Lodewijk Goderbauer, (Case 288/82) [1983] ECR 3663, 3674 et seq. paras. 13– 15; BGHZ 109, 27, 31, both with regard to Art. 19 Brussels Convention (now Art. 25 Brussels I Regulation), and Mankowski, in: Rauscher, Art. 27 Brüssel Ia-VO note 2. Hausmann, A note 104; Daniel Schäuble, in: Althammer, Art. 17 note 2. Contra Rauscher, in: Rauscher Art. 17 note 15; Simotta, in: Fasching/Konecny, Art. 17 note 4. See only Dilger, in: BBGS, Art. 17 note 3 (2005); Dilger, para. 318; Spellenberg, in: Staudinger, Art. 17 note 5; Daniel Schäuble, in: Althammer, Art. 17 note 2. Dilger, in: BBGS, Art. 17 note 3 (2005); Hüßtege, in: Thomas/Putzo Art. 17 note 1. See BGH NJW 1996, 1059; BGH NJW 2000, 289. van Den Eeckhout, in: van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 85. van Den Eeckhout, in: van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 90.

November 2016

Chapter II: Jurisdiction

Article 17

IV. Consequences Pursuant to Art. 17 the court must declare that it has no jurisdiction to entertain the pending 27 proceedings. The wording of Art. 17 is absolutely clear and unambiguous in this regard.58 Such declaration has to be distinguished from any ruling as to substance.59 It is the judge’s responsibility to ensure that the appropriate declaration is made.60 Due to the hierarchical priority of the Regulation, this applies regardless whether such declaration would be permitted under national law.61 Art. 17 conveys and establishes the necessary jurisdiction for issuing the declaration.62 The further consequences ought to be determined according to the national procedural law of the forum state. In most states, the further and final consequence will be a dismissal of the application made by the plaintiff initiating the proceedings.63 Whether this has the effect of res iudicata is also for the national law of the forum state to ascertain. Since jurisdiction is a necessary prerequisite in order to reach the later stages of deciding as 28 to substance, the court must find one way or the other to terminate and finalise the proceedings. The court cannot pursue the case any further – since it lacks the jurisdiction to do so. It must employ the appropriate means provided by the law of the forum state in order to close the proceedings.64 The case must not be pending any more. The declaration of lack of jurisdiction must lead to the final word and the final and determinative (negative) say of the court. A confined version of the declaration would refer only to the concrete proceedings pending before the single court second seized.65 A court is certainly competent to declare that it does not have jurisdiction to entertain the proceedings pending before it. A broader version might encompass a general declaration that all the courts of the respective Member State do not have the necessary jurisdiction for the case in question once the court first seized in another Member State has not dismissed the case before it.66 The national law of the forum determines as to whether an appeal against the final decision 29 of the court respective instance is permissible or not. For instance, in Germany the Be-

58

59 60

61

62

63

64 65

66

Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10405, I-10414 para. 19. See Child and Family Agency v. RD [2014] IESC 47 [16] (S.C. Ireland, ct. judgm. per O’Donnell Donal J.). Re E (A Child) (Care Proceedings: European Dimension) [2014] 1 WLR 2670, 2677 (F.D., Sir James Munby P.); see also Child and Family Agency v. CJ [2015] IECA 86 [37]-[38], [2015] 2 ILRM 412, 428–429 (CA Ireland, per Finlay Geoghegan J.). Child and Family Agency v. CJ [2015] IECA 86 [39], [2015] 2 ILRM 412, 429 (CA Ireland, per Finlay Geoghegan J.). Child and Family Agency v. CJ [2015] IECA 86 [32], [45], [2015] 2 ILRM 412, 429, 431 (CA Ireland, per Finlay Geoghegan J.). See only OGH EvBl 2009/41 with note Frauenberger-Pfeiler = iFamZ 2009/53 with note Fucik; Simotta, in: Fasching/Konecny, Art. 17 note 7. Rauscher, in: Rauscher, Art. 17 note 14. Child and Family Agency v. CJ [2015] IECA 86 [47], [2015] 2 ILRM 412, 431 (CA Ireland, per Finlay Geoghegan J.). See Child and Family Agency v. CJ [2015] IECA 86 [47], [2015] 2 ILRM 412, 431 (CA Ireland, per Finlay Geoghegan J.).

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schwerde pursuant to § 612e (1) ZPO would be permissible.67 Its prospects of course depend on the merits of the complaint. If national law establishes the first instance as the only and final instance so be it, too. 30 The Brussels IIbis Regulation does not allow a cross-border transfer or a binding cross-

border transmission of a matrimonial case to the court which is deemed competent in another Member State.68 The dismissal for lack of jurisdiction is a purely negative decision,69 to some extent leaving the parties seeking for the dissolution of the marriage out in the rain. The same unsatisfactory result is reached for cases on parental responsibility, but for Art. 15.70 31 Art. 17 does not urge the court dismissing the case pending before it to pronounce which

jurisdiction it deems competent.71 Such a pronouncement would be futile as it could never be binding on the jurisdiction so designated. A pronouncement would not be workable where a variety of different jurisdictions could be competent and the court seized has to dismiss its case if already another jurisdiction would be competent.72 31a A determination that the present forum lacks jurisdiction pursuant to Art. 17 to determine

care proceedings does not leave it bereft of jurisdiction to mark interim orders under the circumstances envisaged by Art. 20.73 V. “Negativer Kompetenzkonflikt” 32 Strictly sticking to the wording, Art. 17 does not concern the case that neither the court

seized nor any other court in a Member State has jurisdiction. In this event the second condition precedent is not fulfilled. A negativer Kompetenzkonflikt (negative conflict of jurisdictions) threatens to arise where no forum is available in the entire EU and all courts within any Member State decline their respective jurisdiction. But perhaps the deadlock can be dissolved rather conveniently: If one is prepared to read the first prerequisite established by Art. 17, namely that the court seized itself lacks jurisdiction under the Regulation, as referring to Arts. 3–6 or 8–13 only, Art. 7 or Art. 14 respectively could come to the rescue.74 Where the Regulation regime is silent the residual jurisdiction under national law could possibly do the trick. If even national law does not declare the court seized competent the court has to dismiss the application anyway. In any event, Art. 17 does not vest jurisdiction in any court, be it a court in another Member State, be it the court seized itself.75 67 68

69 70 71

72 73

74

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Borth, in: Musielak, ZPO (10th ed. 2011) Art. 17 note 1. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6912 paras. 48–50; Hausmann, A note 106; Simons, in: Corneloup, Art. 17 note 20; Geimer, in: Zöller, Art. 17 note 5. See Simons, in: Corneloup, Art. 17 note 19. A v. Perusturvalautakunta (Case C-523/07), [2009] ECR I-2805, I-2850 paras. 53–56. Dilger, in: BBGS Art. 17 note 5; Dilger, para. 320; Simotta, in: Fasching/Konecny, Art. 17 note 9. Contra Puszkajler, IPRax 2001, 79, 83. Simotta, in: Fasching/Konecny, Art. 17 note 9. Child and Family Agency v. CJ [2015] IECA 86 [32], [2015] 2 ILRM 412, 426 (C.A. Ireland, per Finlay Geoghegan J.). Hans-Josef Vogel, MDR 2000, 1045, 1048; cf. also Rauscher, in: Rauscher, Art. 17 note 10.

November 2016

Chapter II: Jurisdiction

Article 18

Article 18: Examination as to admissibility 1. Where a respondent habitually resident in a State other than the Member State where the action was brought does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. 2. Article 19 of Regulation (EC) No. 1348/2000 shall apply instead of the provisions of paragraph 1 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation. 3. Where the provisions of Regulation (EC) No. 1348/2000 are not applicable, Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

Bibliography Bambust/Kruger, Artikel 19 Betekening-Vo en Artikel 26 EEX-Vo: een juridisch practicum, R.W. 2003–4, 1435 Haubold, Internationale Zuständigkeit nach CMR und EuGVÜ/LugÜ, IPRax 2000, 91 Kodek, Österreichisches Mahnverfahren, ausländische Beklagte und das EuGVÜ, ZZP Int. 4 (1999), 125 Schlosser, Unzulässige Diskriminierung nach Bestehen oder Fehlen eines EG-Wohnsitzes im europäischen Zivilprozessrecht, in: FS Andreas Heldrich (2005), p. 1007

Simotta, Wann darf von einem österreichischen Gericht die Klage a limine wegen internationaler Unzuständigkeit zurückgewiesen werden?, in: FS Kostas E. Beys (2003), p. 1515 Vitellino, European Private International Law and Parallel Proceedings in Third States in Family Matters, in: Malatesta/Bariatti/Pocar (eds.), The External Dimension of EC Private International Law in Family and Succession Matters (Padova 2008), p. 221.

I.

4. Unknown residence of the respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17a V. Relevant documents and timely reception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 VI. Lack of appearance by the respondent . . . 21 VII. Service of the document instituting the proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 VIII. Consequences 1. Mandatory stay of proceedings . . . . . . . . 34 2. Continuation in the event of proper service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 3. The case of initially deficient service . . 37

Ratio legis: Guarantee of an effective defence to the respondent . . . . . . . . . . . . . . . . . . 1 II. Systematic structure 1. Connecting factors employed . . . . . . . . . . 3 2. Systematic relationship between the paragraphs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IV. Respondent’s habitual residence outside the forum state 1. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2. Respondent habitually resident outside the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3. Respondent habitually resident in the forum state . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 75

Spellenberg, in: FS Reinhold Geimer (2002), p. 1257, 1278; Rauscher, in: Rauscher, Art. 17 note 10.

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I. Ratio legis: Guarantee of an effective defence to the respondent 1 Art. 18 resembles Arts. 28 (2), (3), and (4) Brussels Ibis Regulation; 26 (2), (3) and (4)

Brussels I Regulation. A counterpart to Arts. 28 (1) Brussels Ibis Regulation; 26 (1) Brussels I Regulation is missing, though, since in the realm of the Brussels IIbis Regulation a head of jurisdiction like Arts. 26 (1) Brussels Ibis Regulation; 24 Brussels I Regulation based on submission, i.e. in the event that the respondent proceeds with the trial without invoking lack of jurisdiction is nearly completely excluded.1 Art. 18 aims at guaranteeing the right of the respondent to be heard before the court and the opportunity of an effective defence.2 The obligation imposed upon the court to stay the proceedings is meant to assure this also in the negative case.3 In addition to a view to the recognition of the future judgment in other Member States, regard must be had to the ground of refusal pursuant to Art. 22 (b) or Art. 23 (c) which in turn is best served by imposing a like duty on the court as (1) does.4 2 In any event, the respondent shall be protected against any necessity to invest heavily in

order to have to defend his case before incompetent courts. He must not be forced to enter an appearance abroad (i.e. outside the state where he is living and habitually resident) simply to invoke the incompetence of the court.5 In combination with Art. 17, Art. 18 establishes an European minimum standard of protection for the respondent in order to guarantee a fair trial and the respondent’s right to a legal hearing.6 Art. 18 is applicable in parental responsibility proceedings,7 but does not apply in purely domestic cases.8 II. Systematic structure 1. Connecting factors employed 3 Art. 18 employs two different connecting factors: firstly, the respondent’s habitual residence

and, secondly, the State whereto the document in question must be transmitted. The former one dominates (1), the latter one (2) and (3). 4 The notion of habitual residence is the same as to be found in the rules of the Brussels IIbis

Regulation on jurisdiction, in particular in Art. 3 (1). There is no separate notion of habitual residence for the limited purposes of Art. 18.

1 2 3 4

5

6

7 8

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See only Rauscher, in: Rauscher, Art. 17 note 6; Hausmann, A note 107. Report Borrás para. 50; Dilger, in: BBGS, Art. 18 note 1 (2005). Finger, JR 2001, 177, 179. See only Report Borrás para. 50, Hans-Josef Vogel, MDR 2000, 1045, 1048; Carlier/Francq/van Boxstael, J. trib dr. eur. 2001, 73, 82; Gaudemet-Tallon, Clunet 128 (2001), 383, 399; Spellenberg, in: Staudinger, Art. 18 note 1; Dilger, in: BBGS, Art. 18 note 1 (2005). See Hausmann, in: Wieczorek/Schütze, ZPO, vol. I (3rd ed. 1994) Art 20 EuGVÜ note 1; Haubold, IPRax 2000, 91, 94 et seq.; Dißars, TranspR 2001, 387, 389; Mankowski, in: Rauscher, Art. 28 Brüssel Ia-VO note 1. See Schoibl, in: FS Rolf A. Schütze (1999), p. 777, 780; Mankowski, in: Rauscher, Art. 28 Brüssel Ia-VO note 1. Hausmann, B note 202. Simons, in: Corneloup, Art. 18 note 6.

November 2016

Chapter II: Jurisdiction

Article 18

Whereto and to which State a document must be transmitted depends not only on the 5 factual opportunities where to serve the document upon the respondent, but rather on the legal framework as to service which is applicable and which circumscribes where service has to take place. If the respective legal framework does not contain limitations in this regard, the applicant must indicate and declare to which State he wants the document to be transmitted in order to serve it on the respondent. This State must not by necessity be identical to the State where the respondent is habitually resident.9 If other options and avenues are open to the applicant, he is entitled to use them. 2. Systematic relationship between the paragraphs (2) takes precedence over (3).10 This is only logical and consequential since Art. 20 (1) 6 Service Regulation expressly gives the Service Regulation precedence over the Hague Service Convention. Accordingly, in practice (2) becomes the predominant rule when it comes down to service outside the forum state. (2) and (3) in turn take precedence over (1). (1) is a subsidiary rule only.11 Insofar as service 7 outside the jurisdiction is at stake, the autonomous rule in (1) is applicable only in the rather rare event that service is to be effected neither in a Member State of the Service Regulation nor in a Member State of the Hague Service Convention. (1) does not dispose of the requirements these special regimes establish for cross-border service but subdues to them by virtue of (2) or (3) respectively. Generally, those regimes are more detailed and sophisticated than the rule in (1) which in rather general terms refers to functional requirements. This can be easily explained since both the Service Regulation and the Hague Service Convention are specifically devoted to addressing issues of service whereas this is only a side-point amongst others in the area of jurisdiction. The Member States of the Service Regulation are identical to the Member States of the 8 Brussels IIbis Regulation: all Member States of the EU except Denmark. Which states are Member States of the Hague Service Convention can best be learned at the most precise and accurate standing via the homepage of the Hague Conference http://www.hcch.net. But (1) and not (2) or (3) remains applicable where service can be effected within the forum 9 state although the respondent has his habitual residence outside the forum state.12 If service inside the forum state is possible this is the most appropriate, most efficient, simplest and least costly way, insofar all the means are available which the national law of the forum state offers for service inside the jurisdiction. This applies even to, and comprises, tag jurisdiction or service by public announcement if the forum state law so considers. Service outside the jurisdiction is only necessary where service cannot be effected within the jurisdiction. Service inside the jurisdiction prevails wherever it is feasible.

9 10 11 12

Mankowski, in: Rauscher, Art. 28 Brüssel Ia-VO note 9a. See only Hausmann, A note 108. See only Hausmann, A note 108. To the same avail Rauscher, in: Rauscher, Art. 18 note 10; Daniel Schäuble, in: Althammer, Art. 18 note 7.

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III. Respondent 10 Who is the respondent has generally to be determined formally, i.e. by the formal denomi-

nation in a given set of proceedings instituted by the applicant. In matrimonial proceedings, matters are clear in principal. There the other spouse from whom separation or divorce is sought, is the respondent. But in the event of a joined application by both spouses, there is no respondent in the formal sense and Art. 18 does not apply consequentially.13 11 Yet in many Member States, proceedings in matters of parental responsibility can be estab-

lished by official bodies ex officio without a specific person being named formally as respondent. Another setting deviating from the classic antagonistic proceedings between two parties may be found where a party applies for opening judicial proceedings which do not know a formal respondent, but only persons entitled to participate. At the level of recognition and enforcement, Arts. 23 (c); 31 (2) take care of such proceedings. Since Art. 18 corresponds on an earlier stage of the proceedings with these rules it is important to employ reconcilable approaches at both levels. Accordingly, the notion of “respondent” in Art. 18 should be interpreted in the light of Arts. 23 (c); 31 (2) as any party different from the applicant.14 IV. Respondent’s habitual residence outside the forum state 1. Generalities

12 In order to trigger (1), pursuant to the wording of (1) the respondent must have his habitual

residence outside the forum state; i.e. he must not be habitually resident in the forum state. This prerequisite did not appear in the Brussels II Convention nor in the Draft Regulations of 4 May 199915 and 17 March 2000.16 It was introduced only later on, apparently with an eye on Art. 20 (1) Brussels Convention, afterwards Art. 26 (1) Brussels I Regulation and now Art. 28 Brussels Ibis Regulation. 13 The term “habitual residence” should be given the same meaning as it is employed in the

respective rules on jurisdiction, e.g. under Art. 3 (1) in divorce proceedings. Neither should there be a distinction between the rules of the Brussels IIbis Regulation using the same terminology, nor must the notion of habitual residence be intermingled with any notion of domicile. This is another, but explainable difference to Arts. 28 Brussels Ibis Regulation; 26 Brussels I Regulation which – like the entire Brussels I/Ibis regime – are centred and focused on domicile throughout whereas the Brussels IIbis Regulation keeps its faith with the habitual residence. The difference this time is a considered one and warranted for. 2. Respondent habitually resident outside the EU 14 Nonetheless, the wording does not directly import the wording of Arts. 28 (1) Brussels Ibis 13 14

15 16

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Simotta, in: Fasching/Konecny, Art. 18 note 8. Rauscher, in: Rauscher, Art. 18 note 11; Simotta, in: Fasching/Konecny, Art. 18 note 7; cf. also Dilger, in: BBGS Art. 23 note 22 (2005); Gottwald, in: Münchener Kommentar zur ZPO, Art. 23 note 5. COM (1999) 220 final. COM (2000) 151 final.

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Regulation; 26 (1) Brussels I Regulation: Whereas Arts. 28 (1) Brussels Ibis Regulation; 26 (1) Brussels I Regulation require the defendant to be domiciled in another Member State than the actual forum state (1) is not likewise phrased in the positive, but refers negatively to the respondent not having his habitual residence in the forum state. This allows for an important difference between the two rules: (1) encompasses the case that the respondent has his habitual residence not in another Member State but in a non-Member State whilst Arts. 28 (1) Brussels Ibis Regulation; 26 (1) Brussels I Regulation do not.17 Yet the solution found in (1) can be defended on the ground that the favor defensoris which can be tentatively gained from the rules on jurisdiction and Art. 6 also should be granted to nationals of a Member State who are habitually resident outside the EU; insofar the jurisdictional regime in its entirety and the protection granted to the respondent would be consistent.18 In addition, the recognition and enforcement of the final judgment in non-Member States, and in the non-Member State where the respondent has his habitual residence in particular, might be facilitated19 although this depends on that State’s national law as to recognition and enforcement. But in fact the true sister rules are in line with each other in this regard.20 Meticulous and 15 painstaking reading reveals that Arts. 28 (2) Brussels Ibis Regulation; 26 (2) Brussels I Regulation does not say a single syllable as to where the defendant should be domiciled. It does not import the restriction contained in Arts. 28 (1) Brussels Ibis Regulation; 26 (1) Brussels I Regulation by way of reference, either. Accordingly, Arts. 28 (2) Brussels Ibis Regulation; 26 (2) Brussels I Regulation, the true sister rule of (1) here, also protects the defendant who is resident outside the EU. This is supported by the reference to the Hague Service Convention in (3) in the event that the Service Regulation is not applicable since the Service Regulation is applicable if the person upon whom a document should be served, is resident in the EU or service has to be effected in a Member State. 3. Respondent habitually resident in the forum state The respondent domiciled in the forum state itself is not protected, anyway. This is a 16 remarkable difference in detail from the approach taken in Arts. 22 (b); 23 (c). Both of these rules do not distinguish as to where the respondent has his habitual residence and thus grant protection to the respondent habitually resident in the forum state, too. The safeguards established by (1) are less comprehensive. At first glance, (1) relies and confides that service within the jurisdiction will be properly effected. But more probably, it is only due to some drafting error that the respondent habitually 17 resident in the forum state is not included and not protected: Art. 20 (1) Brussels Convention and Art. 26 (1) Brussels I Regulation deal with situations where Arts. 18 Brussels Convention; 24 Brussels I Regulation basing jurisdiction on submission by the defendant could possibly come into operation. The latter rules require the defendant to be domiciled outside the forum state since otherwise jurisdiction could – safe for Arts. 16 Brussels Convention; 22 17

18 19 20

Spellenberg, in: Staudinger, Art. 18 note 4; Dilger, in: BBGS, Art. 18 note 3 (2005); Hausmann, A note 110, B note 204. Contra Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 18 note 3. Dilger, in: BBGS, Art. 18 note 3 (2005). Dilger, in: BBGS, Art. 18 note 3 (2005). See also Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 18 note 3.

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Brussels I Regulation – be based on Art. 2 (1) Brussels Convention or Brussels I Regulation respectively. But the second paragraphs of Arts. 20 Brussels Convention; 26 Brussels I Regulation do not refer to the respective first paragraphs and do not import the restriction by way of reference. The restriction to be found in (1) thus does not find its counterpart in Arts. 20 (2) Brussels Convention; 26 (2) Brussels I Regulation. It fits very ill here under (1) since Art. 18 does on purpose not contain a counterpart to Arts. 20 (1) Brussels Convention; 26 (1) Brussels I Regulation. To read the first and second paragraphs of Arts. 20 Brussels Convention; 26 Brussels I Regulation in conjunction and jointly with each other is erroneous in this regard. The draftsmen of the Brussels II Convention were correct when they did not state any restriction based on the respondent’s habitual residence – just the way Art. 20 (2) Brussels Convention; Art. 26 (2) Brussels I Regulation and nowadays Art. 28 (2) Brussels Ibis Regulation do. 4. Unknown residence of the respondent 17a Art. 18 requires that it can be positively ascertained that the respondent is not resident in the

forum state. This cannot be accomplished where the respondent’s residence is completely unknown for it leaves the possibility that the respondent is resident in the forum state. For lack of better information, one cannot safely exclude that the respondent is resident in the forum state. Hence, Art. 18 cannot apply in this scenario.21 But before the conclusion that the respondent’s residence is really unknown can be reached, the court must be satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the respondent.22 Where such efforts have been undertaken but do not have prompted any positive result, i.e. where there were eventually unfruitful, the court may resort to any subsidiary means of service (for instance public service or remise au parquet) provided for by its lex fori even if they do not ensure that the respondent takes actual notice of such service; insofar the applicant’s right to effective protection takes precedence and legitimises.23 V. Relevant documents and timely reception 18 The terms “document instituting the proceedings” and “to receive in sufficient time” have to

be interpreted corresponding to, and in the light of, Art. 34 (2) Brussels I Regulation (now Art. 45 (1) (b) Brussels Ibis Regulation) and, in particular, in the light of Art. 22 (b) the Brussels II counterpart thereto. The same expression is used in all these rules not only verbatim but also to the same avail. Hence, the interpretation should be a concurring one not allowing for differences to inflict difficulties. More importantly, concurring and parallel interpretation permits to profit from the rich case-law on the rules on recognition and enforcement whereas (1) as such like Arts. 28 Brussels Ibis Regulation; 26 Brussels I Regulation; 20 Brussels Convention has not provoked all too many judicial opinions and decisions and will not do so in the future, either.

21 22

23

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Simons, in: Corneloup, Art. 18 note 16. Hypoteční banka a.s. v. Udo Mike Lindner (Case C-327/10), [2011] ECR I-11543 para. 52; G v. Cornelius de Visser (Case C-292/10), ECLI:EU:C:2012:142 para. 55. Hypoteční banka a.s. v. Udo Mike Lindner (Case C-327/10), [2011] ECR I-11543 para. 53; G v. Cornelius de Visser (Case C-292/10), ECLI:EU:C:2012:142 para. 56; Simons, in: Corneloup, Art. 18 note 15.

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Article 18

The document instituting the proceedings therefore means the document provided by the 19 law of the forum to bring the proceedings to the notice of the respondent first time by its service.24 Such document has to contain the essential elements of the legal action and therefore the essential cause for the application25 enabling the respondent to make an informed decision as to whether to defend his case or to enter an appearance.26 The respondent must be informed about the applicant’s principal aims and about the ultimate goal of the proceedings. In addition, the grounds on which the applicant strives for such aims should be contained in the document insofar as required (and permitted) by the lex fori. The document instituting the proceedings is received in sufficient time if the respondent is 20 enabled and in a position to arrange for an appropriate defence taking into account the particular circumstances of the case.27 This is a functional approach avoiding any necessity to hold recourse to the lex fori.28 The matter is one of fact rather than of law.29 VI. Lack of appearance by the respondent For Art. 18 to become operative the respondent must not enter an appearance. Lack of 21 appearance is to be construed autonomously, as in Art. 26 (3), (4) Brussels I Regulation, now Art. 28 (3), (4) Brussels Ibis Regulation, on which Art. 18 is modelled.30 A lack of appearance occurs where neither the respondent nor the respondent’s representative by law nor any attorney or other delegate instructed by the respondent participate in the proceedings. If the respondent enters an appearance but does not reply anything substantial this does not 22 trigger Art. 18. An appearance remains an appearance regardless of its content, the notion being a formal one. An appearance does not require that the respondent replies as to substance, though. Not- 23 withstanding that, the respondent does not enter a relevant appearance if he only alleges that he was not in a position to arrange for his defence in time due to the document instituting the proceedings having not been properly served upon him or if he only raises the objection of such lack of proper service. A respondent raising any such reply should be equated to a respondent who did not turn up and has not been represented at all, bearing in mind that

24

25

26 27

28

29 30

Kropholler/von Hein, Art. 34 EuGVVO note 29 with further references; cf. for further details Martin Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr 2 EuGVÜ, Lugano-Übereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998). Volker Sonntag v. Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann (Case C-172/91), [1993] ECR I-1963, I-2000 para. 39; Kropholler/von Hein, Art. 34 EuGVVO note 30. BGHZ 141, 286. OLG Hamm RIW 1987, 871; OLG Köln NJW-RR 1995, 446, Kropholler/von Hein Art. 34 EuGVVO note 34. But favouring such recourse (without any material difference as to the eventual outcome) Rauscher, in: Rauscher, Art. 18 note 17; Daniel Schäuble, in: Althammer, Art. 18 note 11. Hausmann, A note 113. See only Rauscher, in: Rauscher Art. 18 note 8; Simotta, in: Fasching/Konecny, Art. 18 note 4; Simons, in: Corneloup, Art. 18 note 7.

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Arts. 22 (b); 23 (c); 31 (2) establish such lack of proper service as a ground on which to refuse recognition of a later judgment.31 24 Matters are different yet again if the respondent enters an appearance in order to raise the

objection that the court seized lacks jurisdiction. Art. 18 aims at protecting fair trial, not the rules on jurisdiction. Hence, in this scenario the court has to apply not Art. 18, but Art. 17 and has to examine its jurisdiction.32 VII. Service of the document instituting the proceedings 25 As to service and the applicable modalities, (2) and (3) distinguish between two different

scenarios whereas a third is not expressly mentioned. The distinction runs along the line whether the State where service has to be executed and finalised, i.e. where service upon the recipient is effected, is (a) a Member State of the EU (with the exception of Denmark), (b) a non-EU State but a Member State of the Hague Service Convention of 1965 or (c) even a non-Member State of the Hague Service Convention. In the EU, formerly Regulation (EU) No. 1348/2000 and now Regulation (EU) No. 1393/2007 apply but for Denmark who has deplorably opted out of Title IV of the EU Treaty completely and has not even kept the backdoor open to creep in by a mere opt-in. Yet the then EC and Denmark have concluded a bilateral Agreement33 transferring the substance of the Service Regulation. Denmark has duly implemented this Agreement.34 26 The original Service Regulation, Regulation (EU) No. 1348/2000, has been superseded by

Regulation (EU) No. 1393/2007.35 This does not pose any major problem. (2) must be read as referring not to the repealed Art. 19 Regulation (EU) No. 1348/2000 anymore, but to its successor, Art. 19 Regulation (EU) No. 1393/2007. 27 The current Art. 19 Service Regulation reads: Article 19: Defendant not entering an appearance 1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that: 31

32

33

34 35

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Dilger, in: BBGS Art. 18 note 2 (2005); Spellenberg, in: Staudinger, Art. 18 note 15; Urs Peter Gruber, in: Nomos Kommentar BGB Art. 18 note 2; Rauscher, in: Rauscher, Art. 18 note 8; Simotta, in: Fasching/ Konecny, Art. 18 note 5; Hausmann, A note 109. Dilger, in: BBGS Art. 18 note 2 (2005); Urs Peter Gruber, in: Nomos Kommentar BGB Art. 18 note 2; Simotta, in: Fasching/Konecny, Art. 18 note 6. Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extra-judicial documents in civil and commercial matters of 19 October 2005, OJ EC 2005 L 300/55; see also Council Decisions 2006/326/EC of 27 April 2006, OJ EC 2006 L 120/23, and 2009/943/EC of 30 November 2009, OJ EC 2009 L 331/26. OJ EC 2007 L 94/70; 2009 L 331/21. Council Regulation No. 1393/2007 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EU) No. 1348/2000, OJ 2007 L 324/9.

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2.

3. 4.

5.

Article 18

(a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or (b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. Each Member State may make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled: (a) the document was transmitted by one of the methods provided for in this Regulation; (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures. When a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiry of the time for appeal from the judgment if the following conditions are fulfilled: (a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and (b) the defendant has disclosed a prima facie defence to the action on the merits. An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Member State may make it known, in accordance with Article 23(1), that such application will not be entertained if it is filed after the expiry of a time to be stated by it in that communication, but which shall in no case be less than one year following the date of the judgment. Paragraph 4 shall not apply to judgments concerning the status or capacity of persons.

In the course of Europeanisation of international procedural law, Art. 18 is by virtue of (2) 28 replaced with Art. 19 Service Regulation as far as the acknowledgment of the respondent or the transmission of a document to another EU Member State is concerned. Insofar the different parts of European international procedural law fit into their respective places, and the ensemble in its entire assembles the parts of the jigsaw. Pursuant to (3), in other instances the service has to accord with Art. 15 of the Hague Service 29 Convention. This is important for services in EU Member States before the coming into effect of the Service Regulation on May 31, 2001 and all services in non-Member States, because in this regard the Service Regulation is not applicable pursuant to its international scope.36 Nevertheless, condition precedent is that the service in question comes within the scope of the Hague Service Convention. (3) does not intend to extend the Hague Service

36

Hüßtege, in: Thomas/Putzo Art. 18 note 4.

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Convention beyond its own borders but should follow the Convention. This can be clearly deducted from the last clause of (3) where it is expressly required that the relevant document “had to be transmitted abroad pursuant to that Convention”.37 Hence, (3) does not guarantee the standard established by Art. 15 Hague Service Convention to all and any service outside the Service Regulation as an independent and autonomous order of the Brussels IIbis regime. 29a The list of Contracting States of the Hague Service Convention which are not Member States

of the Service Regulation or the EU, comprises:38 Albania; Antigua and Barbuda; Argentina; Armenia; Australia; the Bahamas; Barbados; Belarus; Belize; Bosnia and Herzegovina; Botswana; Canada; Colombia; Costa Rica; Egypt; Iceland; India; Israel, Japan; Macedonia; Malawi; Morocco; Mexico; Monaco; Montenegro; Norway; Pakistan; the People’s Republic of China (including Hong Kong and Macao); the Republic of Korea; the Republic of Moldavia; the Russian Federation; San Marino; Serbia; the Seychelles; Sri Lanka; St. Vincent and Grenadines; Turkey; Ukraine; USA; Venezuela; Viet Nam. 30 Article 15 Hague Service Convention reads: Article 15 1. Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that – a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. 2. Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled – a) the document was transmitted by one of the methods provided for in this Convention, b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed. 3. Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures. 31 Such declarations as are permitted by Art. 15 (2) Hague Service Convention in order to avoid

intolerable delay, have been filed by the following Member States of the EU: Belgium, Denmark, the Czech Republic, Estonia, France, Germany, Greece, Hungary, Ireland, Lithuania, Luxemburg, the Netherlands, Portugal, Slovakia, Spain, the United Kingdom and Cyprus.39

37 38 39

234

Emphasis added. See the actual status http://www.hcch.net/en/instruments/conventions/status-table/?cid=17. http://www.hcch.net/en/instruments/conventions/status-table/?cid=17.

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The Contracting States which are non-Member States of the EU, but have filed such declaration, can be named as:40 Antigua and Barbuda; Argentina; Australia; Botswana; Iceland; Japan; Monaco; Norway; Pakistan; the People’s Republic of China (including Hong Kong and Macao); the Republic of Korea; San Marino; Sri Lanka; St. Vincent and Grenadines; Turkey; Ukraine; USA; Venezuela; Viet Nam. It is important to learn that – quite unlike, and in contrast to, (1)–(2) and (3) do not 32 differentiate as to where the respondent is habitually resident; the relevant factor is solely where service is going to be effectuated be it in the State where the respondent is habitually resident or somewhere else.41 This keeps the line with Arts. 22 (b); 23 (c); 31 (2) where such a differentiation does not occur, either.42 For the details of service under Art. 19 Service Regulation or Art. 15 Hague Service Con- 33 vention, the commentaries specifically dedicated to these rules should be consulted.43 Particularities which would only unearth in the present context of the Brussels IIbis Regulation, have not been observed yet44 insofar as service upon a named respondent is at stake.45 VIII. Consequences 1. Mandatory stay of proceedings (1) urges the court to stay the proceedings until proper service has been established and 34 evidenced. The very wording of (1) dictates this to be a mandatory stay without permitting the court any discretion to exercise. “shall stay” appears unequivocal and unambiguous in the same manner as the wording in the other languages (e.g. in German “so hat das zuständige Gericht das Verfahren so lange auszusetzen”). The court does not have any discretion in this regard.46 On the other hand, a stay still is only a temporary and interim measure; it must not be 35 confused with dismissing the application. (1) resembles Art. 26 (2) Brussels I Regulation as opposed to Art. 26 (1) Brussels I Regulation. Only the latter but not the former demands the court to declare of its own motion that is has no jurisdiction and to dismiss the application accordingly. Since (1) refers to issues of service and not to matters of jurisdiction this is absolutely consistent. To the contrary, (1) expressly establishes that the court required to proceed along the lines set out there is a “court with jurisdiction”. Jurisdiction is a different issue, and it is dealt with quite separately.

40 41 42 43 44 45

46

http://www.hcch.net/en/instruments/conventions/status-table/?cid=17. See Mankowski, in: Rauscher, Art. 26 Brüssel I-VO note 9d. See Mankowski, in: Rauscher, Art. 26 Brüssel I-VO note 9e. E.g. on Art. 19 Service Regulation Heiderhoff, in: Rauscher. Masterly and unsurpassed the detailed commentary by Spellenberg, in: Staudinger, Art. 18 notes 20–36. For other scenarios where the difficulty is to identify the persons to be protected, supra Art. 18 notes 10– 11 (Mankowski). Rauscher, in: Rauscher, Art. 18 note 12; Daniel Schäuble, in: Althammer, Art. 18 note 9.

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2. Continuation in the event of proper service 36 If the court reaches the conclusion and asserts that the document instituting proceedings

was properly served the stay shall be lifted and the proceedings shall continue. Technically, this may follow from the regime applicable to service. In particular it can be derived by way of implication from Art. 19 (1) Service Regulation. It is not expressly spelled out anywhere but clearly follows from the language used, namely “as long as” which appears in the wording of Art. 19 (1) Service Regulation, Art. 15 (1) Hague Service Convention and (1). The stay becomes unjustified and must be lifted in the applicant’s interest if it is ascertained that the respondent’s basic interest has been properly respected and complied with. The said rules give the court the implied power and jurisdiction to dispose of its order for a stay. 3. The case of initially deficient service 37 Neither (1) nor the rules replacing it contain any rule for the case that the court reaches the

conclusion to ascertain that the document instituting the proceedings has not been properly served upon the respondent yet. Then it is for other rules and national law respectively to step in and to provide the supplementary rules filling the gap in the Regulation regime. These other rules and eventually lex fori must answer as to whether the applicant gets a second chance to make good for his or the court’s initial failure or whether, to the contrary, the initial lack of proper service cannot be overcome and the application ought to be dismissed (only to be renewed in a second if the applicant still nurtures the same interest which made him commence court proceedings in the outset). 38 The test should be a two-tier test: In the first place, the regime applicable to service –

foremost, if applicable, the Service Regulation – must be examined as to whether initial shortcomings of service might be cured and healed by subsequent steps. If and insofar as the answer is affirmative there might eventually be proper service. In this event there is no justification for dismissing the application, and the proceedings ought to be continued after the stay which was ordered pursuant to (1) has been lifted.

39 The second tier of the test comes into operation if and insofar as the regime applicable to

service finally asserts that proper service cannot be established even by curing initial deficiencies. Then the national procedural rules of the forum state are called upon to answer the question as to whether the applicant gets some kind of second chance to renew its application whilst the improperly established first proceedings are stayed until proper service has been effectuated. Article 19: Lis pendens and dependent actions 1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established. 2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court

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second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established. 3. Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seized may bring that action before the court first seized.

Bibliography Andrae, Anerkennung und Vollstreckung von Entscheidungen sowie die Beachtung der früheren Rechtshängigkeit nach der EheVO (Brüssel II-Verordnung), ERA-Forum 1/2003, 28 Chalas,, Litispendance et décalage horaire dans les contentieux du divorce en Eurrope, RCDIP 2016, 387 Geimer, Lis pendens in der Europäischen Union, in: FS Hans Jürgen Sonnenberger (2004), p. 357 Urs Peter Gruber, Die “ausländische Rechtshängigkeit” bei Scheidungsverfahren, FamRZ 1999, 1563 Urs Peter Gruber, Die neue “europäische Rechtshängigkeit bei Scheidungsverfahren”, FamRZ 2000, 1129 Urs Peter Gruber, Zur Konkurrenz zwischen einem selbständigen Sorgerechtsverfahren und einem Verbundverfahren nach der EheVO, IPRax 2004, 507 Hilbig-Lugani, Anmerkung zu EuGH, Urt. v. 6.10. 2015, Rs. C-489/14 – A v. B, GPR 2016, 132 Lübbert, Deutsch-französische Scheidung vor Gericht, ERA-Forum 1/2003, 18

Lupoi, The New Lis Pendens Provisions in the Brussels I and II Regulations, ZZP Int. 8 (2002), 149 Marongiu Bonaiuti, Obbligazioni alimentari, rapporti patrimoniali tra coniugi e litispendenza tra I regolamenti “Bruxelles I” e “Bruxelles II”, Riv. dir. int. priv. proc. 2005, 699 Nordmeier, Eintritt und Fortbestand der Rechtshängigkeit nach Art. 16 EuEheVO und Art. 32 EuGVVO – insbesondere bei Verfahrensaussetzung, IPRax 2016, 329 Prütting, Der europäische Streitgegenstand und die Rechtssache Purrucker, in: FS Daphne-Ariane Simotta (2012), p. 437 Rieck, Anmerkung zu EuGH, Urt. v. 6.10.2015, Rs. C-489/14 – A v. B, NJW 2015, 3778 Rolf Wagner, Ausländische Rechtshängigkeit in Ehesachen unter besonderer Berücksichtigung der EG-Verordnungen Brüssel II und Brüssel IIa, FPR 2004, 286.

General considerations . . . . . . . . . . . . . . . . . . . . . 1 Lis pendens and third states . . . . . . . . . . . . . . . 13 Interrelated actions relating to divorce, legal separation or marriage annulment, (1) 1. General considerations . . . . . . . . . . . . . . . . . . 16 2. Identity of the parties . . . . . . . . . . . . . . . . . . . 19 3. Colliding causes of action . . . . . . . . . . . . . . . 23 4. “False lis pendens” . . . . . . . . . . . . . . . . . . . . . . . 28 5. Conflict between separation and divorce proceedings a) Precedence of the earlier separation proceedings? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 b) Tentative vote against an approach favouring the more severe result . . . . . . . 35 c) Lack of a core issue theory . . . . . . . . . . . . . . 36 d) Coordination with res iudicata . . . . . . . . . 37

e) The uneasy case of the vanishing Art. 11 (2) Brussels II Regulation . . . . . . 38 6. First seized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Identical matter of parental responsibility, (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 1. Same child or same children concerned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 2. Same “cause of action” . . . . . . . . . . . . . . . . . . 47 Consequence: mandatory stay . . . . . . . . . . . . . 50 Further consequences depending on acceptance of, or declining, jurisdiction by the court first seized, (3) 1. Transformation of stay into dismissal in the event of the court first seized accepting its jurisdiction a) Mandatory dismissal . . . . . . . . . . . . . . . . . . . . 53

I. II. III.

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V. VI.

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Article 19 b) Decision by the court first seized on its jurisdiction aa) Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 bb) Appeal pending against any decision . . 58 cc) Stay by the court first seized for want of jurisdiction . . . . . . . . . . . . . . . . . . . . . . 61 c) Overcoming informational difficulties 64 d) Continuous collision of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66a e) Declining jurisdiction and later applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 f) Cooperation under Art. 15 . . . . . . . . . . . . . . 68

Brussels IIbis Regulation 2. Continuation of proceedings before the court second seized after the court first seized declined jurisdiction . . . . . . . . 69 3. “False transfer” of the case by virtue of the second clause of (3) a) The model employed by (3) 2 as opposed to a genuine transfer . . . . . . . . . . 74 b) Consequential questions . . . . . . . . . . . . . . . . 81 VII. Anti-suit injunctions . . . . . . . . . . . . . . . . . . . . . . . 85 VIII. Relation between Art. 19 and Art. 20 . . . . 87 IX. Alleviation by the European Judicial Network? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 X. Conflicting matrimonial and ancillary civil proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

I. General considerations 1 Art. 19 corresponds to, and heavily borrows from, Art. 21 Brussels Convention,1 afterwards

Art. 27 Brussels I Regulation, now Art. 29 Brussels Ibis Regulation. Account must be taken of developments and of considerations of the CJEU in relation to any of the sister rules.2 All those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom.3 The objective of Art. 19 in particular is to avert the bringing of contending matrimonial proceedings and, as a consequence, the possibility of irreconcilable judgments on the same issue rendered by courts in different Member States.4 Likewise, (2) shall prevent decisions which are incompatible.5 To promote the recognition and enforcement of judgments is one of the fundamental aims of the entire regime, and the lis pendens provisions are part of the scheme under which this is to be achieved.6 To avoid concurrent proceedings in different jurisdictions is a matter of judicial policy, and it is particularly important to keep costs to a minimum where the proceedings in question concern sharing a “finite” pot of assets.7 Possible conflict is solved by Art. 19 establishing a basic principle of prior temporis (and not by a concept as vague as that of the court better suited).8 Qui prior est tempore potior est iure.9 Chronological order rules.10 The proceedings before the court first seized take precedence 1 2 3

4

5 6 7 8 9

10

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See only Cassaz. RDIPP 2005, 424, 426; Mostermans, NIPR 2001, 293, 300. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 27. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 64; A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 29; M.H. v. M.H. (Case C-173/16), ECLI:EU:C:2016:452 para. 22. See with regard to Arts. 21; 22 Brussels Convention Maersk Olie & Gas A/S v. Fa. M. de Haan en W. de Boer, (Case C-39/02) [2004] ECR I-9657, I-9697 para. 31 with further references. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 67. DT v. FL (2007) I.L.Pr. 763, 793 (H.C., McKechnie J.); Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 226. Mittal v. Mittal [2013] EWCA Civ 1255 [35], [2014] Fam. 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.). Mostermans, NIPR 2001, 293, 300. See only AP Barcelona AEDIPr 2008, 880; Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 179; Neumayr, iFamZ 2008, 362, 366; Malatesta, in: Corneloup, Art. 19 note 2. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 30.

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over all other competing actions. Strict chronological precedence reigns11 even if it were only by the hour or the minute.12 This had the edge of simplicity at the outset13 and is deeply rooted in mutual respect between Member States.14 It is a hard and fast rule.15 It establishes a tie-break rule16 clear and effective,17 as clear-cut, as precise and as black-letter fixed as possible.18 Art. 19 is abundantly clear for the court second seized.19 It does not permit the court second seized to ponder, and to tamper with, as to which set of proceedings might have the more extensive cause.20 Any kind of forum non conveniens doctrine is ruled out21 (but for a small remainder in Art. 15). Any time consuming search for a materially founded solution of the conflict is ruled out in order to generate and foster legal certainty.22 Indubitably, Art. 19 has to be read purposively and not as tightly as one might read a national 2 statute.23 It features amongst the main purposes of the entire Brussels IIbis Regulation that a clear basis of jurisdiction is established in all circumstances where there is potential competition by the courts of different Member States.24 A court must not be seen to take opportunities for usurping the function of the judge in another Member State.25 Once another jurisdiction is demonstrated to be apparently first seized, the jurisdiction must defer by holding itself in waiting and staying the action pending before it, in case that apparent priority should be disproved or declined.26 The whole force of developing European legislation in the field of family law is to impose clear and simple rules to establish jurisdiction and to ensure that once primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities.27 For instance, Art. 19 (2), (3) have to be read in the light of Recitals (12) and (13).28 11

12

13 14 15 16

17

18 19 20 21 22 23

24 25 26

27 28

Knauf UK GmbH v. British Gypsum Ltd. [2002] 1 Lloyd’s Rep. 199, 214 (C.A., judgment of the court delivered by Henry L.J.). See A v. B (Case C-489/14), ECLI:EU:C:2015:654 paras. 40, 44; Rieck, NJW 2015, 3778; Chalas, RCDIP 2016, 387, 389. Bailey-Harris/John Wilson, [2016] Fam. L. 568, 570; Bailey-Harris/John Wilson, [2016] Fam. L. 692, 693. Bailey-Harris/John Wilson, [2016] Fam. L. 692, 693. Althammer, in: Althammer, Art. 19 note 3. Canada Trust Co. v. Stolzenberg (No. 2) [2000] 3 WLR 1376, 1379 (H.L., per Lord Steyn); Dresser UK Ltd. v. Falcongate Freight Management Ltd. [1992] Q.B. 502, 514 (C.A., per Bingham L.J.); Knauf UK GmbH v. British Gypsum Ltd. [2002] 1 Lloyd’s Rep. 199, 214 (C.A., judgment of the court delivered by Henry L.J.). Cartier parfums-lunettes SAS and Axa Corporate Solutions Assurance SA v. Ziegler France SA (Case C-1/ 13), ECLI:EU:C:2014:109 para. 40; A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 29. Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 225. D. v. D. (Nature of Recognition of Overseas Divorce) [2006] 2 FLR 825, 834 (F.D., Bodey J.). Althammer, in: Althammer, Art. 19 note 3; see Report Borrás para. 54. Althammer, in: Althammer, Art. 19 note 3. See Malatesta, in: Corneloup, Art. 19 note 2. Re G (Jurisdiction: Art 19, BIIR) [2014] EWCA Civ 680 [27], [2015] 1 FLR 276, 283 (C.A., per Black L.J.); C v. S [2011] 2 FLR 19, 24 (F.D., Hedley J.). Rogers-Headicar v. Headicar [2005] 2 FCR 1, 4 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.); Re ML and AL (Children) (Contact order: Brussels II Regulation) [2007] 1 FCR 475, 485 (F.D., Nicholas Mostyn Q.C.). Prazic v. Prazic [2006] 2 FLR 1124, 1136 (C.A., per Thorpe L.J.). Re G (Jurisdiction: Art 19, BIIR) [2014] EWCA Civ 680 [27]-[28], [2015] 1 FLR 276, 283 (C.A., per Black L.J.).

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3 Effectively, Art. 19 establishes a race with the winner being the one who commences the

proceedings first.29 The central advantage of such a somewhat arbitrary, but iron30 rule is simplicity and certainty, with consequent reduction or elimination of expensive and superfluous litigation in two jurisdictions.31 The aim is to prevent and avoid complex and prolonged arguments over the better or more convenient forum when there are competing jurisdictions within the EU.32 The framers and drafters put their faith in the simplicity, certainty and practicability of a rule of chronological priority.33 Simple chronology rules.34 A clear and workable rule might be deemed far better than an opaque, if doctrinally purer, rule.35 For instance, the court second seized must not speculate as to whether any decision eventually rendered by the court first seized would be recognised in the State of the court second seized.36 The priority in time ought to be measured by a comparison of the local times when the respective actions were made pending, but taking into regard the time difference between the different time zones within the EU.37 A notional absolute time provides for the necessary basic level of comparability.38 This applies also with regard to different periods or standards of summer time and winter time in different Member States.39 4 Yet in cases with an international dimension the temptation on the parties first to man-

oeuvre and then to fight to establish the jurisdiction which one believes will be more generous, and the other believes will be less generous, needs to be firmly curbed.40 Evidently, Art. 19 does not strike out such possibilities, but on the contrary fosters and enhances them. It gives great if not giant incentives for forum shopping.41 In the context of the Brussels I/Ibis Regulations it might be said that though Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation encourages the parties to sue first and to settle later, this might perhaps not be a bad thing as there is nothing like a claim form to focus the mind on settlement and the battle for jurisdiction is a major tactic in achieving that goal.42 But in the context of the Brussels IIbis Regulation the overall picture is different since divorce or separation cannot be settled as such; only its conditions and financial consequences might become the matter of settlement and compromise. In these regards, the clear cut rule of prior temporis might result in major divergences, though. Small, often arbitrary differences in time (sometimes by hours in 29 30 31

32 33 34 35

36

37 38 39 40 41

42

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Wermuth v. Wermuth (No. 1) [2003] 1 FLR 1022, 1023 (F.D., Bracewell J.); Dimmler, FamRB 2016, 43, 45. Mostyn, [2001] Fam. L. 359, 364. C v. FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 FLR 317, 324 (F.D., Judge Rex Tedd Q.C.). Wermuth v. Wermuth (No. 1) [2003] 1 FLR 1022, 1023 (F.D., Bracewell J.). The “Sargasso” [1994] 2 Lloyd’s Rep. 6, 12 (C.A., per Steyn L.J.). See M.H. v. M.H. (Case C-173/16), ECLI:EU:C:2016:452 para. 23. Briggs, [1992] LMCLQ 150, 153; cited with approval by The “Sargasso” [1994] 2 Lloyd’s Rep. 6, 13 (C.A., per Peter Gibson L.J.). Hau, FamRZ 2000, 1339 (1339); Urs Peter Gruber, FamRZ 2000, 1129, 1132; Geimer, in: Zöller, Art. 19 note 2; Althammer, in: Althammer, Art. 19 note 2. See A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 44; Rieck, NJW 2015, 3778. Nourrissat, Procédures 2015 comm. 660; Dimmler, FamRB 2016, 43, 44; Chalas, RCDIP 2016, 387, 393. Dimmler, FamRB 2016, 43, 44. Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1037 et seq. (C.A., per Thorpe L.J.). See only Baruffi, in: Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 175, 200 et seq. Baatz, [2004] LMCLQ 25, 28.

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gigantic battles) have dramatic consequences in financial consequences.43 This is said to be an utter unfairness of Brussels IIbis in the field of lis pendens.44 The CJEU without further remission declines to take into account the applicant’s subsequent conduct once jurisdiction has been originally established even if the applicant refrains from exerting due diligence and going the next steps required by the lex fori.45 Art. 19 does not stand to be construed in isolation, but in its context in the Regulation as a 5 whole, and in particular within Chapter II, which concerns jurisdiction, though.46 In particular, regard should be had to the case-law of the ECJ and the CJEU on Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation; 21 Brussels Convention since those provisions are not distinguishable from Art. 19.47 Like Art. 21 Brussels Convention, Art. 19 does not require the jurisdictional rules of the Brussels IIbis Regulation to be applicable in order to become operative.48 Neither does Art. 19 presuppose that the future judgment of the court first seized carries with 6 the positive affirmation that it will be recognised and enforced once it is rendered.49 Insofar the rules on (automatic) recognition and enforcement can be said to establish a kind of presumption which is irrebuttable and irrefutable for the purposes of Art. 19. Technically, it is only required that the decision of the court first seized asserting jurisdiction is final.50 Whereas the barring effect of lis pendens is judged exclusively by virtue of Art. 19, the res 7 iudicata effect of the judgment handed down by the court first seized has to be determined pursuant to the lex fori.51 Therefore, the barring effect of a competing action may, by Art. 19, reach farther than the res iudicata effect of the prior judgment. Insofar lis pendens might go a step beyond Arts. 22 (c); 23 (e), (f) advocate for with regard to res iudicata (bearing in mind that Art. 23 (e), (f) generally pursue a different concept than prior temporis). Similarly to Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation; 21 Brussels Con- 8 vention,52 the concept of lis pendens under the Brussels IIbis Regulation does not rely on any prognosis of recognition. An eventual outcome with regard to recognition in the State of the court second seized is irrelevant. Thus, taking lis pendens prevailing into consideration does

43 44 45

46

47

48 49

50 51 52

Malatesta, in: Corneloup, Art. 19 note 3. Hodson, [2007] Fam. L. 1099, 1103. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 42; see also A-G Cruz Villalón, ECLI:EU:C:2015:559 para. 94. Sceptical Hilbig-Lugani, GPR 2016, 132, 135–136. C v. FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 FLR 317, 328 (F.D., Judge Rex Tedd Q.C.). Wermuth v. Wermuth (No. 1) [2003] 1 FLR 1022, 1028 (F.D., Bracewell J.); Uccella, Vita not. 2006, 1261, 1266. See Geimer, in: FS Robert Schweizer (1999), p. 175, 176. See only Hau, FamRZ 2000, 1333, 1339; Hausmann, A note 124; Henrich para. 21; Hüßtege, in: Thomas/ Putzo, Art. 19 note 1. See only Urs Peter Gruber, FamRZ 2000, 1129, 1133; Rolf Wagner, FPR 2004, 286, 288; Henrich para. 21. Urs Peter Gruber, FamRZ 2000, 1129, 1134. BGH NJW 1995, 1758, OLG Köln NJW 1991, 1427.

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by no means hinge upon whether the rivalling judgment can be apprehended to be recognised.53 9 Despite the impression which the heading by expressly adding “dependent actions” to “lis

pendens” might convey, it cannot be affirmatively asserted with absolute clarity and security that Art. 19 also forms a counterpart to Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation; 22 Brussels Convention. Such contention could only be upheld insofar as divorce and annulment of a marriage pursue not exactly identical aims. (2) makes any such contention untenable with regard to parental responsibility since it expressly requires “the same cause of action” to be concerned, thus exactly mirroring the very criterion established only by Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation; 21 Brussels Convention, but not the criterion employed by Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation; 22 Brussels Conventions. Accordingly, one should conclude that a notable difference exists between “dependent actions” (as the heading of Art. 19 coins them) and “related actions” in the terminology used by Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation; 22 Brussels Conventions. 10 It goes without saying that Art. 19 can only come into operation and only bear real meaning

if there are proceedings which can be properly described as ‘existing’ before a court at the relevant date.54 For a court to be seized of a matter, there must in fact be existing proceedings before it.55 To construe Art. 19 in any other way is potentially to make a nonsense of it by a court being seized of a matter about which it can do nothing unless a party revives it.56 A mere right to revive proceedings which are at least preliminarily closed for the time being does make these proceedings still pending.57 Different applications in a single set of proceedings are to be separated from each other in this regard, and it must not be said that separate applications lodged at different times were all part of what in substance is a single dispute still on-going until the very last of these applications is finally dealt with.58 Once an application has been finally removed from the register of the court with which it had been lodged it cannot exert any lis pendens effect anymore.

11 Art. 19 has as a general prerequisite that both sets of proceedings are still pending,59 else

there could not be a conflict and collision to be solved by virtue of Art. 19. If one of the courts concerned enters into a final decision the matter is relegated into the realm of recognition and enforcement. It depends on the understanding of Art. 21 as to whether the Brussels IIbis regime on recognition is also rendered applicable where an application for divorce etc. is finally dismissed. If one employs the negative answer, then only a recognition of a res iudicata effect by the national law of the court before which proceedings are still pending might determine the fate of these proceedings, and this might only happen if one denies that 53

54 55 56 57 58 59

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Hau, FamRZ 1999, 484, 487, Urs Peter Gruber, FamRZ 2000, 1129, 1132; Spellenberg, in: Staudinger, Art. 19 note 18. C v. S [2011] 2 FLR 19, 24 (F.D., Hedley J.). C v. S [2011] 2 FLR 19, 24 (F.D., Hedley J.). C v. S [2011] 2 FLR 19, 24 (F.D., Hedley J.). C v. S [2011] 2 FLR 19, 24 (F.D., Hedley J.). Contra Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 532 (98) (C.A., per Elias L.J.). See only A v. B (Case C-489/14), ECLI:EU:C:2015:654 paras. 37–38; Derby City Council v. SK [2015] EWFC 57 [27], [2016] 2 FLR 12 (F.C., Keehan J.); Rieck, NJW 2015, 3778.

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the Brussels IIbis Regulation has rendered a final verdict against the recognition of dismissing decisions. Res iudicata might not operate either under Arts. 21 et seq. Brussels IIbis Regulation or the national law of the State where recognition is sought – whichever of both is applicable – insofar as an object of the proceedings still pending in that State has not been decided in the other State. A less technical, but more pragmatic approach might look at the result, the dismissal alone, and would disregard any consequential issues of recognition or non-recognition.60 Likewise, there are no competing proceedings and thus no alternative jurisdiction to which a 12 court seized could possibly defer, if proceedings before a certain court have never been properly served on the respondent in those proceedings.61 Art. 19 operates only in the general confines of the Brussels IIbis Regulation. Due to the 12a general scope of application with regard to matrimonial proceedings being restricted to divorce, separation and annulment proceedings as such by virtue of Art. 1 (1) (a) and the explicit exclusion in Art. 1 (3) (e), it does not extend to proceedings concerning the financial consequences of a dissolution of marriage,62 in particular with regard to matrimonial property. II. Lis pendens and third states Art. 19 is only applicable if both sets of proceedings are pending before courts in different 13 Member States. Art. 19 does not address lis pendens if one of the courts involved is located in a non-Member State, but in a so-called third state.63 Consequently, national rules apply to parallel proceedings in third states, but only if and to the extent that they do not impair nor impede the full effectiveness of the European regime on jurisdiction.64 Art. 16 is believed not to be applicable, even not per analogiam.65 However, national law should be free to adopt on its own motion the European solution as yardstick for third country cases. Otherwise, the peculiar result could arise that the court would be seized with consequential matters like maintenance claims earlier (for instance by virtue of Art. 27 2007 Lugano Convention) than it would be seized with the main proceedings.66

60 61

62 63

64

65 66

To this avail A v. B (Case C-489/14), ECLI:EU:C:2015:654 paras. 37–45. C v. S [2011] 2 FLR 19, 24 et seq. (F.D., Hedley J.); see also Mercredi v. Chaffe [2011] EWCA Civ 272, [2011] 2 FLR 515, 529 [84] (C.A., per Thorpe L.J.), 531 [97] (C.A., per Elias L.J.). OGH SZ 2011/56; Hausmann, A note 122. See only OGH unalex AT-799; KG FamRZ 2016, 836 with note Geimer; Hof ’s-Hertogenbosch NIPR 2010 Nr. 404 p. 673; JKN v. JCN, [2010] EWHC 843 (Fam), [2011] 1 FLR 826, (2011] 2 FCR 33 (F.D., Deputy Judge Theis Q.C.); AG Strikwerda, NIPR 2007 Nr. 95 p. 134; Sana-Chaillé de Néré, D. 2005, 1459, 1462; Crône, Rép. Defrénois 2005, 1331, 1338; Borrás, in: Malatesta/Bariatti/Pocar p. 99, 106; Vitellini, in: Malatesta/Bariatti/Pocar p. 221 et seq.; Neumayr, iFamZ 2008, 362, 366; Hausmann, A note 123, B note 211; Althammer, in: Althammer, Art. 19 note 2; Malatesta, in: Corneloup, Art. 19 note 37; Rauscher, in: Rauscher, Art. 19 note 15; Hilbig-Lugani, NZFam 2016, 384. Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 222; Neumayr, iFamZ 2008, 362, 366; Hausmann, B note 211; Malatesta, in: Corneloup, Art. 19 note 37; Geimer, FamRZ 2016, 840, 841. KG FamRZ 2016, 836, 838. Geimer, FamRZ 2016, 840, 841.

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14 Whereas it might tentatively be in the line of Owusu67 to distinguish in this regard between

rules established by EU law itself on the one hand and national rules only referred to by EU law on the other hand it is far more convincing to permit for ceding jurisdiction to the courts of third States if national law also adheres to a principle of prior temporis.68 English courts still are entitled to grant discretionary stays in favour of third countries.69 Owusu technically ruminated about jurisdiction and jurisdiction only, clarifying the basic principle underpinning Art. 2 Brussels I Regulation (now Art. 4 Brussels Ibis Regulation). There is nothing in Owusu that would directly demand to press jurisdiction forward and through even against the exceptional settings of third state proceedings which would take precedence under the national law of the forum.70 Owusu guarantees that the grounds of jurisdiction are institutionally available to their letter and not diminished by any doctrine of national law as to jurisdiction, even in a third country context. But it does not go beyond that. In particular, it does not wipe out a proper application of rules on lis pendens for the clash of two sets of proceedings adds an important special feature to the scenario. One should not overdo and should not favour solutions which are excessively Eurocentric.71 Undeniably, there is some uncertainty for practical purposes whether such reasoning would withstand scrutiny whereas it is rather unlikely given the legal costs and the time delay involved in taking a case to the CJEU that the issue will be determined by the CJEU in the foreseeable future.72 15 A rather hidden and exceptional dimension might call for reflection one day, though: Has a

court in a second Member State which is raised third, to apply Art. 19 and consequentially to decline jurisdiction in favour of the court of the Member State which was second seized although this court according to its national law in turn would cede jurisdiction in favour of the court in the third State? III. Interrelated actions relating to divorce, legal separation or marriage annulment, (1) 1. General considerations 16 (1) refers to applications for divorce, legal separation of marriage annulment, but does not

cover any proceedings relating to parental responsibility.73 Several matrimonial proceedings pending between the same parties may or may not concern the same disputed matter. For example, a petition for divorce and an application for marriage annulment both aim at dissolving the bond of marriage. Thus, both actions concern the same disputed matter.74 The grounds and battlefields on which the parties struggle within the same type of matrimonial cause (e.g. divorce on the grounds of adultery in one jurisdiction or divorce liberally granted

67 68

69

70 71 72 73 74

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Andrew Owusu v. Nugent B. Jackson (Case C-281/02), [2005] ECR I-1383 paras. 37 et seq. Vitellini, in: Malatesta/Bariatti/Pocar p. 221, 222 et seq.; Ní Shúilleabháin para. 5.34; but cf. also Malatesta, in: Corneloup, Art. 19 note 38. Ella v. Ella [2007] EWCA Civ 99, [2007] 2 FLR 35 (C.A.); JKN v. JCN [2010] EWHC 843 (Fam), [2011] 1 FLR 826 (F.D., Judge Lucy Theis QC). Contra Jarmain, [2007] Fam. L. 429; Karsten, [20099 IFL 35; Amlot/Longmate, [2010] Fam. L. 990. Ní Shúilleabháin para. 5.34. Wells-Greco, [2011] IFL 207, 208. Report Borrás para. 54. Hau, FamRZ 2000, 1333, 1339, Christian Kohler, NJW 2001, 10, 13.

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after a certain period of time has lapsed in another jurisdiction), are irrelevant and do not matter.75 It would be untenable that the courts of Member State A dissolve the marriage whereas the 17 courts of Member State B uphold the very same marriage. Results could not be more strikingly contradictory and irreconcilable. Art. 19 attempts at preventing two results conflicting to this degree to be reached. The principle of prior temporis might produce rough justice, but even rougher justice would be produced by two fairly and truly opposite judgments. On the other hand, such contending actions in matrimonial matters must not lead to 18 negative conflicts of jurisdiction.76 Therefore, the court later seized must stay its proceedings until the jurisdiction of the court first applied to, is established, provided that both proceedings relate to the matters enumerated in (1) and are brought between the same parties. 2. Identity of the parties (1) withholds priority of the proceedings before the court first seized, provided the actions 19 covered by (1) are brought “between the same parties”. In exactly the same manner as Art. 27 Brussels I Regulation (now Art. 29 Brussels Ibis Regulation), the parties of two proceedings are identical if the same persons take any possible part in both sets of the proceedings at stake. There is no lis pendens mechanism vis-á-vis third parties.77 Multilateral proceedings have to be dissected into several bilateral relationships, with (1) applying only insofar as the same persons participate in several or all of those relationships. Yet in matrimonial causes the likelihood of multilateral proceedings is rather small in all 20 probability since matrimonial proceedings per definitionem are between the spouses and generally nobody else.78 Yet there might be rare instances to another avail.79 An example is to be said to occur if an action for the annulment of the marriage between X and Yon the basic of lack of consent is brought in Member State A and Member State B is asked to annul Y’s marriage to Z for bigamy on the basis that Y was still married to X.80 Insofar as third-party nullity actions are permitted and believed to fall in the scope of Brussels IIbis such actions might generate further examples.81 Possibly children might sue in their own name for maintenance, but even suits relating to 21 parental responsibility will be fought between the parents, the former spouses. The respective roles of the parties do not matter, be it the same person applying in two different sets of procedures, be it that the applicant in one set of proceedings is the respondent in the other and vice versa.82 75

76 77 78 79 80 81 82

Gaudemet-Tallon, Clunet 128 (2001), 381, 400–401 no. 48; Mostyn, [2001] Fam. L. 359, 364; Spellenberg, in: Staudinger, Art. 19 note 9. See Report Borrás para. 53. Ní Shúilleabháin para. 5.10. See only Malatesta, in: Corneloup, Art. 19 note 10. Overlooked by Althammer, in: Althammer, Art. 19 note 5. Ní Shúilleabháin para. 5.10. See Ní Shúilleabháin para. 5.10. See only Andrae, ERA-Forum 1/2003, 28, 51.

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22 Formally the case might appear different prima vista if in one State one of the spouses filed

an application for dissolution of the marriage of any kind and in another State an official body applies for a declaration of nullity of the very same marriage. Formally the State actively pursuing annulment participates only in, and is only party of, the second set of proceedings whereas it does not appear in the other set. Yet the rationale underlying Art. 19 demands that Art. 19 comes into operation in order to avoid conflicting results being reached if ever possible.83 3. Colliding causes of action 23 Potentially, any matrimonial proceedings falling within the scope of the Brussels IIbis Regu-

lation can create a lis pendens84 as far as the same marriage is concerned.85 Actions seeking the annulment of the marriage on one hand or divorce on the other hand have the same cause of action namely dissolving the marital bond regardless of whether the effect of the respective judgment is ex tunc or ex nunc.86 Identity of the cause of action is not verbally required by (1) – in contrast to (2), but listing the possibly relevant causes of action serves much the same purposes. The legislative technique chosen is superior and alleviates the task of the courts as they are not called upon to ruminate whether annulment and divorce pursue identical causes of action or not.

24 Different actions for divorce clearly share the same cause of action.87 Likewise, applications

for competing orders with regard to the same child relate to the same cause of action.88 Independent reconciliation proceedings which the lex fori does not require as necessary and mandatory first steps towards the dissolution of a marriage do not happen to collide with divorce or annulment proceedings.89 25 Actions for recognition of a third country divorce or other proceedings for a mere status

declaration (i.e. not constituting the dissolution of the marital bond, but only stating that the marriage had been dissolved by another instance earlier) are not covered.90 26 Only the main cause of action bears relevance. Mere incidental questions (Vorfragen), e.g.

whether the marriage now to be divorced was valid at all, do not constitute causes of action, nor do they form part of the respective causes of action as defined by the respective applications.91 Hence, if an identical incidental question is raised this does not trigger off the application of Art. 19 and does not by such means vest a prerogative for answering in the court first seized.92 The court must only examine the respective applications of the applicants in the two sets of proceedings and will not take account of the defences of the respondents.93 83 84 85 86 87 88 89

90 91

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Andrae, ERA-Forum 1/2003, 28, 51. Ní Shúilleabháin para. 5.06. Hausmann, A note 126. Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 180. See only AP Barcelona AEDIPr 2008, 880. AP Madrid AEDIPr 2009, 966. Urs Peter Gruber, FamRZ 2000, 1129, 1132; Dilger, in: BBGS, Art. 19 note 17 (2005); Rauscher, in: Rauscher, Art. 19 note 22; Althammer, in: Althammer, Art. 19 note 10. Ní Shúilleabháin para. 5.10. See Malatesta, in: Corneloup, Art. 19 note 11.

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Connected or interrelated claims (for instance for maintenance or for the division of ma- 27 trimonial property) do not matter as to the identification of the main cause for the purposes of Art. 19.94 They simply are outside the material scope of the Brussels IIbis Regulation and must already for this simple reason disregarded for Regulation purposes. Matters of parental responsibility and divorce or annulment proceedings do not collide, either.95 4. “False lis pendens” Provided that the parties of several proceedings are identical, the lis pendens rules applies, by 28 (1), to what are called “false lis pendens”96 or “dependent actions” the causes of which are not identical. Originally, Art. 11 (2) Brussels II Regulation applying to dependent actions expressly performed this task more evidently. As a consequence of including Art. 11 (2) Brussels II Regulation an Article on related actions disappeared and was not included sine it was not considered that there were cases, involving the subject matter of the Regulation, which would be outside the framework of the express provision for dependent actions.97 The eventual disappearance of a pendant to Art. 11 (2) Brussels II Regulation in the present Art. 1998 makes such contention at least less convincing if not less tenable. Since (1), as a point of reference, is not modelled on Art. 22 Brussels Convention,99 after- 29 wards Art. 28 Brussels I Regulation and now Art. 30 Brussels Ibis Regulation, it does not establish a concept of “false lis pendens” as far-reaching as the one provided for in the Brussels I/Ibis Regulation.100 Thus, independent proceedings relating to parental responsibility as pursued in a Member State do not bar a petition for divorce filed in another Member State.101 As far as (1) comprises dependent actions, it is understood that all actions filed are con- 30 tingent, i.e. may, if pursued in isolation from each other, lead to irreconcilable judgments on the same issues. The result of any proceedings is not allowed to influence or to collide with the other proceedings at stake.102 As a whole, (1) is designed to deal with the differences in 92

93

94

95

96 97 98

99 100 101

102

Tentatively contra Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 182. Gantner Electronic GmbH v. Basch Exploitatie Maatschappij BV (Case C-111/01) [2003] ECR I-4207, I-4236, I-4237 paras. 26, 31 et seq.; Kolden Holdings Ltd. v. Rodette Commerce Ltd. (2007] EWHC 1597 (Comm), (2007) I.L.Pr. 669, 678, (2007) 4 All ER 62, 77 (Q.B.D., Aikens J.). Gardeñes Santiago, AEDIPr 2008, 880, 883; Herbert Roth, IPRax 2013, 188, 189; Althammer, in: Althammer, Art. 19 note 6; cf. also Aud. Prov. Madrid AEDIPr 2009, 966, 967. Dilger, in: BBGS Art. 19 note 8 (2005); Althammer, in: Althammer, Art. 19 note 7; Geimer, in: Zöller, Art. 19 note 5. See Report Borrás para. 54. Report Borrás para. 56. On this disappearance and its potential consequences see in more detail infra Art. 19 notes 38–41 (Mankowski). See Report Borrás para. 56. Supra Art. 19 notes 8–10 (Mankowski). van Den Eeckhout, in: van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 92. Hüßtege, in: Thomas/Putzo Art. 19 note 9.

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legislation between the various Member States and especially to avoid problems for Member States which do not have legal separation.103 5. Conflict between separation and divorce proceedings a) Precedence of the earlier separation proceedings? 31 According to (1), an earlier application for legal separation bars divorce proceedings or

annulment proceedings even when the law governing the latter action does not (yet) allow for divorce or marriage annulment.104 Yet the opposite contention could be brought forward that divorce proceedings and an application for legal separation do not concern the same disputed matter, as only the divorce proceedings shall dissolve the bond of marriage.105 An action for separation and an action for divorce might be seen as not to have the same object since only the latter but not the former might lead to the dissolution of the marital bond.106 If one is prepared to admit that identity of causes is required only by (2), but not by (1), the lack of such prerequisite would logically lead to a situation of lis pendens where two courts of different Member States are seized of judicial separation proceedings in one case and divorce proceedings in the other case.107 32 The Report Borrás argues in favour of an independent way108 giving each of the kinds of

proceedings mentioned equal weight since it held that the grounds for one kind in legal order A could easily be grounds for another kind in legal order B.109 Accordingly, separation proceedings could effectively bar divorce proceedings although they do not pursue exactly the same goal for the time being. If the order in time is the other way round, either divorce or annulment proceedings indubitably block a later application for mere separation.110 33 An additional argument supporting this result should be the equal treatment of the Member

States: In some Member States separation is generally required as a strict condition for divorce.111 In the event of a conflict between separation proceedings in such a Member State and divorce proceedings in another Member State, the latter would always prevail in effect if one did not attribute equal weight to the separation proceedings. 34 Originally, this kind of conflict might have been sorted out by Art. 11 (2) Brussels II Regu-

lation.112 The best ratio to underlay that rule might have been that it avoided characterisation issues and a burning need for heavy distinguishing.113

103 104 105 106 107 108 109 110 111

112 113

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Report Borrás paras. 52, 54. Report Borrás para. 57; Malatesta, in: Corneloup, Art. 19 note 17. See Mostyn, [2001] Fam. L. 359, 364; Malatesta, in: Corneloup, Art. 19 note14. AP Girona AEDIPr 2009, 1000, 1001; Gardeñes Santiago, AEDIPr 2008, 880, 883. A v. B. (Case C-489/14), ECLI:EU:C:2015:654 para. 33; Hilbig-Lugani, GPR 2016, 132, 133. Report Borrás para. 52. Report Borrás para. 52. App. Perugia Riv. dir. int. priv. proc. 2012, 53; Malatesta, in: Corneloup, Art. 19 note 16. For the sake of argument it is assumed that the conflicts rules applied would lead to the lex fori as applicable substantive law. See in more detail infra Art. 19 notes 38–41 (Mankowski). Mostermans, NIPR 2001, 293, 300.

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b) Tentative vote against an approach favouring the more severe result Thus, (1) also tentatively votes against any approach that the application possibly producing 35 the more severe and more radical result should generally and on an abstract level prevail.114 Such an approach would not put the different kinds of proceedings on an equal footing whereas the list contained in the wording of (1) is indiscriminate and does not distinguish to such an avail. Yet such tendency may not rule out to take the different amount to which res iudicata is triggered, into account in a concrete collision. c) Lack of a core issue theory (1) does not adopt expressly the so-called core issue theory as it was developed under Art. 21 36 Brussels Convention. (1) does not call for the same cause of action to be concerned apparently since this ought to be irrebuttably presumed if two of the applications listed collide.115 An alternative explanation would read that the applications listed might concern causes of action different in principle,116 but are at least akin to “related actions” in the sense employed by Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation.117 In practice, the explanation underpinning (1) is not a matter of real concern anyway.118 d) Coordination with res iudicata The results produced by this approach are not entirely convincing, though. This applies in 37 particular to the case that an application for separation became pending first in – as might be assumed argumentandi causa – Italy whereas an application for divorce became pending second in Germany or UK. The second application must be treated as effectively blocked with not a trace of an opportunity to pursue it any further whilst on the other hand the separation is the first step in a two-tier procedure to divorce under Italian (substantive) law but not more than this: a mere first step expressly not dissolving the bond of marriage.119 The way out of the apparent and ensuing deadlock is surprising: The applicant for divorce would be well-advised to renew his application for divorce in the other State as soon as the Italian court has pronounced a mere separation.120 Astonishingly, recognition of the separation judgment does not produce a res iudicata effect wide enough to exclude future divorce proceedings elsewhere precisely because it does not dissolve the bond of marriage.121 Thus, the bar erected against conflicting proceedings by (1) and lis alibi pendens is far more reaching than the respective bar erected later-on by res iudicata. Apparently, lis alibi pendens and res iudicata bitterly lack coordination in this regard.122 Nothing is gained by (1) insofar, and commencing another set of divorce proceedings in the second Member State after

114 115 116 117 118 119 120 121 122

Spellenberg, in: Staudinger, Art. 19 note 9. Hau, FamRZ 2000, 1033, 1039; Christian Kohler, NJW 2001, 10, 12. Report Borrás para. 54 in fine. See Gottwald, in: Münchener Kommentar zur ZPO Art. 11 EheGVO note 3. Schlosser Art. 11 EheGVO note 2; Spellenberg, in: Staudinger, Art. 19 note 9. Rauscher, in: Rauscher, Europäisches Zivilprozessrecht (1st ed. 2004) Art. 11 Brüssel II-VO note 27. Rauscher, in: Rauscher, Europäisches Zivilprozessrecht (1st ed. 2004) Art. 11 Brüssel II-VO note 27. But cf. very critical Malatesta, in: Corneloup, Art. 19 note 17. Rauscher, in: Rauscher, Europäisches Zivilprozessrecht (1st ed. 2004) Art. 11 Brüssel II-VO note 28; Ní Shúilleabháin para. 5.10.

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dismissing or finishing the first set123 only perpetuates the struggle and allows costs to explode.124 e) The uneasy case of the vanishing Art. 11 (2) Brussels II Regulation 38 The European legislator can be blamed not for the least part for the insecurity on the topic:

In the process of revising the Brussels II Regulation, Art. 11 (2) Brussels II Regulation apparently escaped attention. It read: “When proceedings for divorce, legal separation or marriage annulment not involving the same cause of action and between the same parties are brought before courts in different Member States, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.” This rule was introduced as a genuine innovation designed specifically to deal with the differences on legislation between the various Member States on the admissibility of proceedings for separation, divorce or marriage annulment and to cover such cases of “dependent actions” or “false lis pendens”.125 39 Whereas (1) reproduces Art. 11 (1) Brussels II Regulation to the letter, no counterpart for

Art. 11 (2) Brussels II Regulation can be found in the Brussels IIbis Regulation. Contentions that it reappears as a definition in Art. 2 Brussels Ibis Regulation126 are ill-founded for two reasons: Firstly, how could anything in the Brussels II Regulation which was repealed in its entirety reappear at all? Secondly, a definition is worlds apart from a rule in the later operative parts of the Regulation simply for lacking direct consequences. 40 Unfortunately, this leaves open only two fairly distinct, if not alternative alleys: The first one

settles for an argumentum e contrario. It would simply state that Art. 11 (2) Brussels II Regulation was dropped and that its content should not find a place anymore anywhere. The second one is more complicated. Its contention should result in (1) to be read as some kind of merger of the former paragraphs (1) and (2) of Art. 11 Brussels II Regulation importing the content of the second paragraph in the unchanged wording of the first paragraph. Neither reading is utterly convincing and appealing at first sight. The argumentum e contrario would be picture-perfect – if it could only gain some support from the travaux préparatoires for Art. 19. Any intention to drop the previous rule on purpose would be very much welcome, but cannot be identified. The second approach on the other hand must twist the words of (1) and attach to it a different meaning (or more precisely: different scope) than they had under Art. 11 (1) Brussels II Regulation. An identical wording is a strong indication that the use of the same words implies the same rulings as to substance. From this it could be derived that (1) means just what Art. 11 (1) Brussels II Regulation meant, and nothing more, going not an inch beyond its immediate predecessor.

41 But another wording has remained unaltered and would now be puzzling if the content of

Art. 11 (2) Brussels II Regulation had vanished completely: the wording of the heading. It 123 124 125 126

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See Ní Shúilleabháin para. 5.08. Rauscher, in: Rauscher, Europäisches Zivilprozessrecht (1st ed. 2004) Art. 11 Brüssel II-VO note 28. Report Borrás para. 53. Like Spellenberg, in: Staudinger, Art. 19 note 3 puts forward tentatively.

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still refers to “Lis pendens and related actions” (emphasis added). The latter phrase originally was intrinsically linked with Art. 11 (2) Brussels II Regulation. This indicates (if one is not prepared to accuse the drafters of the Brussels IIbis Regulation of sloppy editing) that the content which had previously been covered by Art. 11 (2) Brussels II Regulation must also sneak into Art. 19. 6. First seized Which court is first seized is a matter of timing. To ascertain which court is first seized it has 42 firstly to be ascertained when either of the courts concerned was seized. Art. 30 provides the guidance for this double step. The second step is to compare the respective points in time. Whether the court has to ascertain the underlying facts on its own motion or whether any interested party has to plead and if necessary prove such facts, is regulated by the national law of the court second seized.127 Problems might arise where two sets of proceedings issue almost contemporaneously.128 In 43 principle, the time of lodgement should be determinative if two sets of proceedings issue on the same day.129 If no official records are kept of the exact time of lodgement this tie-breaker fails.130 Even if exact records as to the times are kept one has to bear in mind that the Member States concerned might be located in different time zones so that synchronisation of times is called for.131 Generally, where the difference in time is a matter of hours the rather complex definition of seisin in Art. 16 does not eliminate the risk of conflicting judgments.132 The CJEU declared time differences between the Member States which might result from Europe being split in three different time zones, to be not relevant.133 If absolute, not local time mattered applicants would benefit the more the respective Member State is to the East.134 But this appears to be inevitable, given the lack of a more convincing alternative.135 Yet time differences might be mitigated or, conversely, exacerbated by other factor, e.g. different systems and modes of lodging or service in the different Member States concerned.136 If the proceedings in the first court have been terminated by judgment and are thus no 43a longer pending, Art. 19 becomes inapplicable.137 Yet the judgment rendered by the court originally first seized might now determine the outcome of the other set of proceedings by 127

128

129 130 131 132 133

134 135 136 137

See Urs Peter Gruber, in: Nomos Kommentar BGB, Art. 19 note 9; Hausmann, A note 125; Hüßtege, in: Thomas/Putzo, Art. 19 note 1. Practical examples are provided by Cass. Clunet 136 (2009), 587 with note Fohrer-Dedeurwaerder and LK v. K (No 3) [2007] 2 FLR 741 (F.D.) where each time English and French divorce proceedings were initiated on the very same day. Ní Shúilleabháin para. 5.13; Malatesta, in: Corneloup, Art. 16 note 15. Ní Shúilleabháin para. 5.13; Malatesta, in: Corneloup, Art. 16 note 15. Ní Shúilleabháin para. 5.13. Fohrer-Dedeurwaerder, Clunet 136 (2009), 588, 594; Malatesta, in: Corneloup, Art. 16 note 15. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 47. Sceptical Rieck, NJW 2015, 3776, 3778; HilbigLugani, GPR 2016, 132, 136. Hilbig-Lugani, GPR 2016, 132, 136; see also A-G Cruz Villalón, ECLI:EU:C:2015:559 para. 36. See Dimmler, FamRB 2016, 43, 44. Hilbig-Lugani, GPR 2016, 132, 136. See AA v. BB [2014] EWHC 4219 (Fam) [62], [2015] 2 FLR 1251, 1262 (F.D., Moylan J.).

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way of its recognition by the court originally second seized under Art. 23.138 (1) might be potentially wider than the limits the lex fori of the court first seized applies to its notion of res iudicata; thus is conceivable that after the court first seized has given judgment the proceedings before the court second seized might continue as to substance where matters are not covered by that judgment.139 This is a consequence to be derived from the lack of a European concept of res iudicata. 43b Art. 19 becomes inapplicable if the proceedings in the first court have been discontinued,

too.140 But it does not suffice that proceedings are rather dormant for they might be reinflated with life on a respective application by either party.141 43c The crucial case is that the court second seized disregards that the cause has become pending

earlier with another court, and continues its “own” proceedings. Art. 19 does not expressly provide for this case and sanctions which might deter the court second seized from walking down this avenue. Francovich liability imposed upon the State of the court second seized might theoretically be an option. Yet it collides with judicial independence and the lack of practical means for the government representing that State to intervene in concrete court proceedings. Non-recognition of the judgment of the court rendered in violation of Art. 19 second seized in other Member States might be more feasible. Systematically there are obstacles, though. The catalogue of grounds for refusal of recognition in Arts. 22 is deemed to be exclusive and comprehensive. Violation of Art. 19 does not feature in it. Violation of Art. 19 can only be introduced as an unwritten ground of refusal iuxta vel contra legem.142 At least for matters of parental responsibility, the CJEU has tentatively done so.143 In particular, the court first seized which has been divested of its priority in time (metaphorically one might say: its right of primogenitur), has been held not to be under any obligation to recognise the decision of the court second seized rendered in violation of Art. 19.144 This establishes a disincentive for the party who has applied for the second set of proceedings for it can score at best a semi-victory in these proceedings which would not fully reach that party’s aim. IV. Identical matter of parental responsibility, (2)

44 According to (2), the same lis pendens rule as set forth in (1) applies if several proceedings

relating to parental responsibility relate to the same child and involve the “same cause of action”. (2) is a late entry, but a natural where one naturally had to adjust to the main change made by the transgression from the Brussels II Regulation to the Brussel IIbis Regulation.145 After the extension of the Brussels IIbis Regulation to all matters of parental responsibility 138 139 140

141 142 143

144 145

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Rauscher, in: Rauscher, Art. 19 note. 23; Althammer, in: Althammer, Art. 19 note 12. Althammer, in: Althammer, Art. 19 note 12. See AA v. BB [2014] EWHC 4219 (Fam) [62], [2015] 2 FLR 1251, 1262 (F.D., Moylan J.); Malatesta, in: Corneloup, Art. 16 note 16. Ní Shúilleabháin para. 5.15; Malatesta, in: Corneloup, Art. 16 note 16. Dutta/Andrea Schulz, ZEuP 2012, 526, 538–540; Althammer, in: Althammer, Art. 19 note 3. Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU), [2010] ECR I-14309 para. 70; Re C [2012] EWHC 907 [71] (F.D., Moylan J.). Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU), [2010] ECR I-14309 para. 70. Malatesta, in: Corneloup, Art. 19 note 1.

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the previous problems which occurred under the Brussels II Regulation with regard to socalled “independent” matters of parental responsibility (i.e. such matters without status proceedings between the parents pending and not annexed or ancillary to such proceedings),146 are extinguished.147 (2) strictly requires the “same cause of action” and does not extend to merely related actions.148 (2) deliberately avoids referring to any notion of lis pendens possibly preconceived under national concepts but lays down a number of substantive conditions as components of an autonomous definition.149 On the other hand, identity of the parties is not required.150 The opposite would not be 44a sensible for it would deny lis pendens effects between actions brought by the different parents, mother and father each, but related to the same child or brought by at least one parent and an official body. Any requirement of identity of parties should not be re-introduced by the backdoor disguised as part of the identity of “cause of action”. Same cause of action and identity of the parties are connected, but not interrelated requirement. Hence, for instance where English and Polish authorities, definitely not the same parties, bring different protection actions related to the same child a stay cannot be denied on the ground that the actions were initiated by different parties.151 The object of the action is the end the action has in view.152 Account must be taken of the applicants’ respective claims in each of the different sets of proceedings.153 1. Same child or same children concerned Basic required is that the possibly colliding applications relate to the same child.154 Proceed- 45 ings related to different children have different purposes155 and do not exert blockades on each other. An application relating to parental responsibility for child X might be pursued in state A whereas simultaneously an application relating to parental responsibility for child Y might be continued in state B. They cannot result in directly conflicting orders. Conflicting orders would have the result that the court in one state decides in the mother’s favour whilst the court in the other state decides the same issues in the father’s favour. That in relation to one child the mother gets the upper hand whilst in relation to another child the father gains the winning edge, is reconcilable with each other even though some common preliminary issues might be judged differently by the courts seized. Under the auspices of family unity the solution is not optimal, though, and a better cooperation among authorities would be advisable.156 146

147 148 149 150

151 152 153 154 155 156

On this topic OLG Karlsruhe IPRax 2004, 524 = FamRZ 2005, 287 with note Martin Frank; Urs Peter Gruber, IPRax 2004, 507. Urs Peter Gruber, IPRax 2004, 507, 509. See only Malatesta, in: Corneloup, Art. 19 note 7. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 66. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 65; Malatesta, in: Corneloup, Art. 19 note 19. As Tower Hamlets London Borough Council v. MK [2012] EWHC 426 (Fam) [43] (F.D., Baker J.) did. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 68. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), [2010] ECR I-11163 para. 68. OLG Hamm FamRZ 2006, 1043; Hausmann, B note 216; Rauscher, in: Rauscher, Art. 19 note 38. Rauscher, in: Rauscher, Art. 19 note 39. To the same avail Malatesta, in: Corneloup, Art. 19 note 18.

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46 Mere preliminary issues do not participate from any res iudicata effect. Hence, differing

views as to paternality and parenthood even with regard to siblings, twins and even the same child as such do not matter. The only things that really matter are the results eventually expressed in the holdings of the respective orders. The mother’s parental responsibility over child X does not conflict with the father’s parental responsibility over child Y. It might not be the ideal solution altogether since it separates brothers and sisters from each other and splits the family geographically. But this only calls for better judicial cooperation and coordination,157 not for an application of Art. 19. 2. Same “cause of action” 47 It is understood that the “same cause of action” is filed if the disputed matter of several

proceedings is the same. The concept of a disputed matter under the Brussels IIbis Regulation is autonomous. It does not depend on any notion of a disputed matter under the procedural law of any Member State.158 Thus, the “same cause of action” is filed provided that the ‘central issue’ of several proceedings is identical.159 The common objective is the decisive factor.160 A set of matrimonial proceedings and set of proceedings relating to parental responsibility as such never relate to the same disputed matter.161 The case may be different, though, if and insofar as parental responsibility is a side issue in the set primarily concerned with matrimonial matters, too. An application for the return of a child does not have the “same cause of action” as an application to settle parental responsibility.162 Parental responsibility might be the true core issue, but within the return action is a mere incidental question and does thus not determine the cause of action.163 If either party to the proceedings later-on extends or restricts (generally: modifies) its initial application, the modified and not the initial application should be relevant for determining the cause of the respective action if the lex fori of the court confronted with such modification permits the modification and pays relevance to it.164 48 Yet in practice informational difficulties as to the scope and cause of the proceedings pend-

ing before the other court might arise. Then the court is not under a duty to investigate the respective facts ex officio at least such a duty does not stem from (2). Exceptionally, such duty might follow from the applicable procedural rules of the lex fori, though. Else the court might called upon the parties and in particular the party invoking lis alibi pendens to clarify the facts.165 The latter party is primarily burdened with the onus to establish that an identical cause is already pending elsewhere.166 157 158 159 160 161

162

163 164 165 166

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See on the possible effects of the European Judicial Network infra Art. 19 note 90 (Mankowski). Urs Peter Gruber, FamRZ 2000, 1129, 1131. Urs Peter Gruber, FamRZ 2000, 1129, 1131. See only Malatesta, in: Corneloup, Art. 19 note 20. See C v. FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 FLR 317, 328–330 (F.D., Judge Rex Tedd Q.C.). Hof Amsterdam NIPR 2011 Nr. 152 p. 318. Contra Hausmann, B note 216; Spellenberg, in: Staudinger, Art. 19 note 33; Hüßtege, in: Thomas/Putzo, Art. 19 note 4. See J. McB. v. L. E. (Case C-400/10 PPU), [2010] ECR I-8965 [64]. Contra Hausmann, B note 216. Contra Hausmann, B note 215. Rb. ’s-Gravenhage NIPR 2003 Nr. 252 p. 382 et seq. Rb. ’s-Gravenhage NIPR 2003 Nr. 252 p. 382 et seq.

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Similar to the prerequisites of the Brussels Ibis/Brussels I Regime, a proceeding relating only 49 to provisional and protective measures on the one hand and any other proceeding within the scope of (2) on the other hand do by no means concern the same disputed matter.167 To stay a request for provisional relief because jurisdiction is believed to be exclusively vested in the court which is competent to hear the main proceedings,168 misconstrues both Art. 19 and in particular Art. 20.169 V. Consequence: mandatory stay If the prerequisites listed in (1) exist or more precisely: if the courts first seized positively 50 asserts its own jurisdiction, the court second seized must of its own motion stay its proceedings pursuant to (3) 1.170 It must not wait for any application by either party to do so. On the other hand, the court second seized is not urged upon to dismiss the case pending before it singlehandedly. In the first step, only a mandatory stay is required and not the outright dismissal. The further outcome then depends by virtue of (3) on whether the court first seized establishes its own jurisdiction or not. Else the danger would arise that the court second seized dismisses prematurely and the court first seized also dismisses for lack of jurisdiction. The respective danger was first banned in Art. 21 Brussels Convention by the 1989 Accession Convention insofar mirroring an amendment of the initial wording such amendment being implemented by the Lugano Convention.171 Consequentially, (3) 1 follows suit in order to avoid the risk of a negativer Kompetenzkonflikt (negative conflict of jurisdictions).172 The court second seized is bereft of any discretion as to whether to stay the proceedings or to 51 decline jurisdiction and dismiss the proceedings.173 The court first seized has exclusive jurisdiction if it establishes so, regardless of convenience.174 To order the stay is imperative and compulsory.175 The parties do not have any means to abrogate from this, either.176 Nor has the court the power to make the stay conditional e.g. on the progress of the proceedings in the court first seized.177 If jurisdiction is contested it is also for the court first seized to decide upon that particular issue.178 In particular any party contesting the validity of the act

167 168 169 170 171

172 173 174 175

176 177

178

Urs Peter Gruber, FamRZ 2000, 1129, 1134; Jayme/Kohler, IPRax 2004, 481, 491. As Trib. Bruxelles J. trib. 2003, 665 did. Jayme/Kohler, IPRax 2004, 481, 491. See only Trib. Bruxelles J. trib. 2003, 665, 666. Jenard/Möller, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988, OJ 1990 C 189/57 para. 64. Report Borrás para. 53. Layton/Mercer para. 22.025; Malatesta, in: Corneloup, Art. 19 note 25. Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. See only BGH NJW 1995, 1758; Cassaz. RDIPP 2005, 424, 426 et seq.; The “Linda” [1988] 1 Lloyd’s Rep. 175, 180 (Q.B.D., Sheen J.). See Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) [2003] ECR I-14693, I-14738 para. 42. See Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) [2003] ECR I-14693, I-14740 et seq. paras. 51 et seq.; OLG München RIW 1998, 631; Layton/Mercer para. 22.026. Mostermans, NIPR 2001, 293, 301.

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initiating the first set of proceedings is not only invited but rather compelled to do so before the court first seized.179 52 The immediate consequence under (2) is the same as under (1): The court second seized

must mandatorily stay the proceedings pending before it if it regards the cause as identical. The further consequences are partially dealt with by (3). For the details of the stay the same should be said as under (1).180 If the court which was seized later does not regard the cause as identical it will not apply (2) and will persist with the proceedings pending before it.181 52a Whether the mandatory stays extends to other causes connected with the divorce proceed-

ings, e.g. maintenance or distribution of matrimonial property, for instance in a German Verbundverfahren is to be answered by virtue of the national law of the lex fori processus.182 The existence of own rules on lis pendens in Arts. 12; 13 Maintenance Regulation and Arts. 17; 18 Matrimonial Property Regulation makes any automatic extension less permissible. The preferable alternative to an automatic extension would be to severe the consequential issues form the divorce proceedings anyway.183 VI. Further consequences depending on acceptance of, or declining, jurisdiction by the court first seized, (3) 1. Transformation of stay into dismissal in the event of the court first seized accepting its jurisdiction a) Mandatory dismissal 53 According to (3), the court second seized is obliged to decline jurisdiction where the juris-

diction of the court first seized is established. This mechanism is modelled on Art. 27 (2) Brussels I Regulation. The court first seized shall decide whether jurisdiction is accepted. In order for the jurisdiction of the court first seized to be established, it is sufficient according to the CJEU184 that the court first seized has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded in national law as being the first defence on the substance submitted before that court.185 Art. 17 guarantees a proper examination of jurisdiction under Art. 3.186 It is not required that the decision on jurisdiction may not be appealed against anymore.187 If by these or any other means the court first seized has established its own jurisdiction, a positive conflict of jurisdiction threatens to arise if both or several proceedings relating to the same matter are carried on.188 On the other hand, 179 180 181 182 183 184

185

186 187

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Trib. Bruxelles J. trib. 2003, 665, 666. Supra Art. 19 notes 50–51 (Mankowski). See only Cassaz. RDIPP 2007, 198, 200. OLG Brandenburg FamRZ 2014, 860; Hau, FamRZ 2000, 1329, 1333; Heiter, FamRZ 2014, 861. Heiter, FamRZ 2014, 861–862. The CJEU might have overlooked that unlike under the Brussels I/Ibis regime the Brussels IIbis Regulation does not contain any rule founding jurisdiction on submission. A v. B. (Case C-489/14), ECLI:EU:C:2015:654 para. 34 with reference to Cartier parfums-lunettes SAS and Axa Corporate Solutions Assurance SA v. Ziegler France SA (Case C-1/13), ECLI:EU:C:2014:109 para. 44. Hilbig-Lugani, GPR 2016, 132, 134. Hilbig-Lugani, GPR 2016, 132, 134.

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acceptance of jurisdiction by the court first seized avoids any negative conflict of jurisdiction. Thus, the court second seized must refrain from continuing the respective proceedings and must decline jurisdiction in accordance with its lex fori. In practice, dismissal is the regular consequence for a court will not be allowed by any national law to entertain an application if it lacks the necessary jurisdiction to do so. Hence, the stay (effective as until the court first seized accepted jurisdiction and the news about this reached the court second seized) will be transformed into a dismissal. The mere temporary dilution is transformed into a final and permanent end to the proceedings initiated by the application brought second. The dismissal is mandatory. The court second seized does not have any discretion to opt for 54 anything else. Although (3) does not say expressly that the court shall order the dismissal of its own motion (by contrast with the requirement to stay under (1) or (2)), the mandatory language of (3) would suggest that the court second seized is itself under an obligation to bring its proceedings to an end.189 An argumentum e contrario relying on the verbal difference to (1) and (2) should not be accepted. As far as competing proceedings relating to parental responsibility are concerned, it is of no 55 importance whether any of those proceedings is pursued ex officio or not.190 Any decision entered into by the court second seized can be appealed against in accordance 55a with the national rules on appeal of the lex fori of that court. This applies also to the decision to stay or not to stay respectively.191 b) Decision by the court first seized on its jurisdiction aa) Generalities The court first seized decides on its jurisdiction in the manner provided for by its own 56 procedural rules.192 The point at which, and the means by which, the jurisdiction of the court first seized is established or not, as the case may be, must necessarily be a matter for the procedural law of that court.193 The jurisdictional rules of the Brussels IIbis Regulation only produce the substantive standards whereas the wrapping, the specific form, flows from national law. For instance, a German court would render a so-called Prozessurteil194 which decisively lacks the force of res iudicata. It is for the national law of the court first seized to ascertain as to whether the court can give an interim judgment on the matter of jurisdiction alone or whether jurisdictional issues are only clarified in the final judgment conclusively dealing with all and any issues before the court. It is not necessary that the jurisdiction of the court first seized has been contested and upon 57 such motion by either party been positively reaffirmed.195 On the other hand, it should not 188 189 190 191 192 193 194

Urs Peter Gruber, FamRZ 2000, 1129, 1133. AG Schleswig IPRspr. 2008 Nr. 185 p. 587; Layton/Mercer para. 22.027. Urs Peter Gruber, FamRZ 2000, 1129, 1132. Malatesta, in: Corneloup, Art. 19 note 28. See only Malatesta, in: Corneloup, Art. 19 note 22. Layton/Mercer para. 22.026. Geimer, in: FS Robert Schweizer (1999), p. 175, 187.

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automatically be assumed that the jurisdiction of the court first seized has been established just because that court has embarked upon a consideration of the merits, for under the procedural rules of some Member States defences both as to jurisdiction and as to the merits must be raised at the same time in order not to become barred and fall victim to preclusion.196 57a It is solely and exclusive in the competence of the court first seized to decide upon its own

jurisdiction.197 The court second seized is bound by the first court’s decision on its jurisdiction and must not second guess it. The court second seized is not entitled to question the correctness and the lawfulness of the first court’s decision. It must not censure the court first seized and must not behave, even indirectly, as a kind of appellate court to the court first seized. The court second seized has to accept any finding on habitual residence by the court first seized and must not reverse the ensuing result by ascertaining a deviating habitual residence for the respective spouse establishing its, the second court’s, jurisdiction.198 Before the court first seized rendered its decision, it is not even entitled to influence the court first seized. It must not request that the court first seized declares itself lacking competence.199 bb) Appeal pending against any decision 58 If the court first seized has decided on its jurisdiction but the decision is under appeal or

other judicial review in the respective state (3) 1 is not triggered since the courts of the jurisdiction where the first action became pending, have not yet given their final say.200 Since there a final result has not yet been reached the less the court second seized can proceed to final conclusions or a dismissal. The condition precedent of (3) 1 is not yet fulfilled.201 It is still for (1) and preliminary solutions to govern the field.202 There needs to be a formally final decision in order to exert binding effects.203 Any appeal in the State of the court first seized suspends a dismissive decision by the court second seized. This covers both an appeal against a decision by the court first seized asserting jurisdiction204 and an appeal against a decision by the court first seized declining jurisdiction.205 59 In any event, the court second seized must not speculate or guess as to the likelihood of the 195 196 197 198 199 200

201

202

203

204

205

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Layton/Mercer para. 22.027. Layton/Mercer para. 22.027. But cf. Rieck, NJW 2015, 3778. See only Hausmann, A note 132. Coventry City Council v. S [2010] IEHC 303 (H.C., MacMenamin J.). AP Madrid unalex ES- 541. Supported by Malatesta, in: Corneloup, Art. 19 note 26. To the same avail Hausmann A note 132; Dimmler, FamRB 2016, 43, 44. Moore v. Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, [2007] ILPr 481 [102] et seq. (C.A., per Lawrence Collins L.J.). Apparently differently L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006] 2 FLR 1113, 1117 (F.D., Singer J.). Rolf Wagner, FPR 2004, 286, 288; Rauscher, in: Rauscher, Art. 19 note 46; Hausmann, A note 132; Dimmler, FamRB 2016, 43, 44. See only William Grant & Sons International Ltd. v. Marie-Brizard & Roger International SA 1998 SC 536. Moore v. Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, [2007] ILPr 481 [1039 (C.A., per Lawrence Collins L.J.).

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appeal to succeed.206 It cannot be right that a judge abroad should second-guess what the decision of a foreign appellate court applying its own domestic law and procedure will be.207 Whatever the evidence in support of a solution contrary to that of the court first seized at first instance it is not right for a judge in a Member State to sit in judgment upon a judge of equivalent (or indeed any) jurisdiction in another Member State.208 If one court regards itself as the court second seized and gives judgment accordingly, but an 60 appeal is lodged against such judgment, the other court in the other jurisdiction which deems itself first seized (thus in substance sharing the view of the court in the partner jurisdiction) is not required to wait for the outcome of the appeal but can proceed to a final decision in its due discretion.209 If the national law of the court first seized allows for a separate interim judgment of juris- 60a diction (or admissibility, including jurisdiction) alone this interim decision is the one that matters. Even initially the interim judgment is headlined as “non final” and does avail itself of any res iudicata effect, it becomes “final” if no appeal is lodged against it and the court first seized subsequently proceeds to issuing a judgment on the merits as to substance.210 cc) Stay by the court first seized for want of jurisdiction Matters become overly complicated where the courts involved reach different conclusions as 61 to which court was the one first seized. Imagine that one court (A) deems itself to be the court second seized and the other court (B) accordingly the one to be first seized whereas this other court (B) stays the proceedings pending before it for the very reason that it regards itself as lacking jurisdiction for the yet other court (A) being the one first seized. The difficulty is that proceedings which are stayed, rather than dismissed, are merely suspended, and capable of recommencing upon the claimant’s application.211 This poses quite some conundrum, and any solution must appear closely related to Ale- 62 xander the Great facing and approaching the Gordian knot. The most undesirable result to be avoided if ever possible would be that the court (A) which regards itself as the one second seized concludes that the proceedings pending before it should be stayed whereas the decision of the other court (B) is in substance that the very same proceedings in (A) should proceed; this would lead to an absurd “after you, Claude” situation which would reflect a lamentable lack of comity.212 Worse, the parties would find themselves entangled in two sets of proceedings which were both stranded and neither having any prospects of progress. Alexander the Great might take the form of an appeal in any of the two jurisdictions with the other waiting for the outcome of the appeal.213 206 207 208 209

210 211 212 213

L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1117 (F.D., Singer J.). L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1117 (F.D., Singer J.). L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1117 (F.D., Singer J.). Leman-Klammers v. Klammers [2007] EWCA Civ 919, [2008] 1 FLR 692, 696 et seq., 697 et seq. (C.A., per Thorpe and May L.JJ. respectively). See Trib. Belluno RDIPP 2011, 727. Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 7. L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1117 (F.D., Singer J.). See L-K v. K (Brussels II Revised: Maintenance Pending Suit) [2006] 2 FLR 1113, 1117–1119 (F.D., Singer J.).

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63 Sometimes common sense is said to suggest that a court cannot be seized of an action which

is no longer active – even if it might be re-activated.214 It is doubted whether an action can be pending in any meaningful sense if it cannot be heard without application to the court by the claimant, especially if it is open to the court to refuse to lift the stay.215 Moreover, it is unclear how the objectives underlying Arts. 27 and 28 would be served by concluding that a court remains seized of proceedings which have been stayed.216 There allegedly is no risk of parallel proceedings or of inconsistent judgments.217 c) Overcoming informational difficulties

64 The court second seized in any event has to overcome informational difficulties as to get the

necessary knowledge whether the court first seized accepted or declined its own jurisdiction, though. Yet ordinarily the party most interested will inform the court accordingly if not the court first seized sets upon informing its fellow judges in the other jurisdiction. But it should be noted that the court first seized is not under any obligation to inform the court second seized. 65 The European Judicial Network might provide the proper basis for direct communication

between the courts concerned. In practice, perhaps not an immediate need, but at least a desire for direct communication arises once the issue of lis pendens is squarely raised in two jurisdictions.218 Cases tend to illustrate the potential of direct judicial communication and cooperation.219 66 In general, it should be a task put upon, and burdened on the shoulders of, counsel at least in

the second set of proceedings to provide information about the progress made or to be expected in the first proceedings, to the court second seized. Counsel should be in a position to give an up-to-date assessment of the likely progress in the other proceedings.220 This might in turn to the conclusion that in cases involving overlapping proceedings in different jurisdiction there should be someone on each counselling team who is coordinating the proceedings and understands what is going on, and is able to inform both courts of the progress in the other jurisdiction.221 d) Continuous collision of proceedings 66a In order for there to be a situation of lis pendens it is important that the colliding proceedings

be pending simultaneously before the courts of different Member States.222 Where initially two sets of proceedings have been brought, but one of them expires afterwards, the situation of lis pendens disappears with the risk of irreconcilable decisions being rendered223 for the 214 215

216 217 218 219 220 221 222 223

260

Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8. Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8. For the opposite view cf. Briggs/Rees, pp. 201 et seq. This view was taken in Haji-Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 (C.A.). Fentiman, in: Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8. Bentinck v. Bentinck [2007] EWCA Civ 175, [2007] 2 FCR 267, 278 (C.A., per Thorpe L.J.). Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1447 (49) (C.A., per Thorpe L.J.). Moore v. Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, [2007) ILPr 481 (7) (C.A., per Thorpe L.J.). Moore v. Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, [2007) ILPr 481 (7) (C.A., per Thorpe L.J.). A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37; Hilbig-Lugani, GPR 2016, 132, 134. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37.

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expired proceedings cannot result in any decision anymore. Even if the jurisdiction of the court first seized had been initially established in the first proceedings, the situation of lis pendens does not exist any longer, and jurisdiction is not established anymore.224 Following the lapse of the proceedings before the court initially first seized (for instance225 as 66b the result of the expiry of time limits imposed by the procedural law of that forum),226 the court initially second seized becomes the court first seized for actual purposes on the date of that lapse.227 This might become important in the light of later applications to the court initially first seized. Incentives to initiate precautionary second proceedings speculating on the then future lapse of the initially first proceedings ensue.228 e) Declining jurisdiction and later applications Declining jurisdiction by virtue of (3) 1 does not bar a later application to the court second 67 seized if the cause of action of these proceedings reaches further than the final judgment handed down by the court first seized. For example, (3) 1 does not prevent a judgment on divorce from being the object, in another Member State, of a subsequent court judgment to ensure that the divorce ruling’s effects ex nunc would have the effects ex tunc of an annulment judgment.229 Similarly, a party legally separated in a Member State is subsequently not impeded from filing a petition for divorce in another Member State. f) Cooperation under Art. 15 In a rare if not exotic setting, the court second seized might still hear the case in spite of the 68 court first seized positively affirming its own jurisdiction: The court first seized might ascertain its own jurisdiction in principle and nonetheless transfer the case to the court second seized under Art. 15.230 2. Continuation of proceedings before the court second seized after the court first seized declined jurisdiction Where the court first seized declines jurisdiction, the court second seized may continue, or 69 carry on, with the proceedings pending before it. The later application raises in rank for it now becomes the first application pending in time and might bar an (initially third, now second) application brought in another State be it even the Member State where the initially first application had been made.231 Although this is not expressly provided for, the court second seized shall lift the stay if the challenge to jurisdiction of the court first seized is

224 225 226 227

228 229 230

231

A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37. For other instances, e.g. retraction of the application, Hilbig-Lugani, GPR 2016, 132, 135. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 42. A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 38; A-G Cruz Villalón, ECLI:EU:C:2015:559 para. 100; Hilbig-Lugani, GPR 2016, 132, 134. Hilbig-Lugani, GPR 2016, 132, 134–135. Report Borrás para. 57. Malatesta, in: Corneloup, Art. 19 note 27; see Verschraegen, in: Bernhard König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich (Wien 2007), p. 91, 99. Gruber, FamRZ 2000, 1129, 1134; Dimmler, FamRB 2016, 43, 44; Chalas, RCDIP 2016, 387, 394.

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successfully upheld.232 For instance, in Italy the court might seize upon the procedural institute of riassunzione.233 70 If the court first seized fails to accept jurisdiction explicitly, but prefers to reject the applica-

tion for substantial reasons only, the court second seized is able to pursue the competing proceedings as well. Neither is such a negative judgment rendered by the court first seized in the Member State of the earlier application, to be recognised according to Art. 21 in the other Member State concerned nor does it generate any res iudicata effect.234 71 In the event that the case is not pending anymore with the court first seized, the principal

requirement of lis pendens has ceased to exist and Art. 19 becomes ineffective in the concrete case.235 Whether and, if so, when the case has become not pending before the court first seized has to be ascertained pursuant to the national law of the court first seized.236 If the disseising of the court first seized has come about through a successful challenge of its jurisdiction, the court second seized may proceed to hear the case.237

72 If the court first seized has given final judgment and the parties do not have appealed against

such judgment the matter is not one of lis pendens any more but has become a matter of res iudicata.238 Insofar the rules on the recognition of judgments substitute for, and take the place of, Art. 19. They will establish the respective impediments to the proceedings before the court second seized. When judgment has been given the court first seized is functus officio and accordingly, neither that court is seized anymore nor is the case pending before it or any other court in the respective jurisdiction anymore239 if no appeal has been lodged.

73 If the court first seized takes unduly long time (i.e. some years) to decide upon its own

jurisdiction the court second seized might feel tempted to break the deadlock by lifting the stay and continuing the proceedings still pending before it.240 Yet this appears to be incompatible with, and to conflict with, the decision of the ECJ in Gasser.241 There, such “simple” delay did not amount to a justification for the court second seized to dispose of Art. 21 Brussels Convention eventually. Perhaps the solution should be found in an issue underrated if not neglected by the ECJ, namely to ask as to whether Art. 6 Human Rights Convention could provide a spark sanctioning the laziness of the court first seized.242 232

233 234 235

236 237 238

239 240 241 242

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Layton/Mercer para. 22.026; Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 180. Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 180. Hüßtege, in: Thomas/Putzo Art. 19 note 14. DT v. FL [2007] I.L.Pr. 763, 793 et seq. (H.C., McKechnie J.); Geimer, in: FS Robert Schweizer (1999), p. 175, 190. Geimer, in: FS Robert Schweizer (1999), p. 175, 191. Briggs/Rees para. 2.205. Tavoulareas v. Tsavliris [2005] EWHC 2140 (Comm) (Q.B.D., Andrew Smith J.); DT v. FL [2007] I.L.Pr. 763, 793 et seq. (H.C., McKechnie J.); Briggs/Rees para. 2.205. DT v. FL (2007) I.L.Pr. 763, 793 et seq. (H.C., McKechnie J.); Briggs/Rees para. 2.205. Baratta, in: Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 181. Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) [2003] ECR I-14693, I-14746 et seq. paras. 70–73. See in extenso Fentiman, in: Magnus/Mankowski, Introduction to Arts. 27–30 Brussels I Regulation notes 35–47.

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A further prerequisite for continuing the proceedings before the court second seized is that 73a the court second seized has jurisdiction. If it lacks jurisdiction it has to dismiss the case pending before it pursuant to Art. 17.243 In practice, but for Art. 7 the court second seized might dismiss the case even without waiting for the court first seized to decide on its, the court first seized’s, jurisdiction as a matter of pragmatism. 3. “False transfer” of the case by virtue of the second clause of (3) a) The model employed by (3) 2 as opposed to a genuine transfer The second clause of (3) allows for some kind of transferring an application to the court first 74 seized, but is not to be interpreted as a reference made by the court second seized ex officio. According to the second clause of (3), the applicant in the second action is given the right to file his application with the court first seized. He is permitted to do so but only if the court second seized declines jurisdiction and dismisses the case.244 (3) 2 is broadly phrased and covers all cases falling under (1) or (2) without limiting restrictions. Proposals to restrict it to cases covered by Art. 11 (2) Brussels II Regulation did not find favour and legislative approval.245 The mechanism is a major renovation and innovation of the lis pendens system.246 The applicant’s right to apply is to be judged autonomously, i.e. independently from the 75 yardsticks of national laws, by the Brussels IIbis Regulation and therefore precedes any differing lex fori of the court first seized.247 The court first seized may not decline such an application due to expiration of time for appealing. Similarly, an application brought in accordance with the second sentence of (3) may not be rejected on the grounds of the lex fori not allowing for such a judgment at all.248 As a consequence, difficulty may arise for Member States who do not have legal separation. (3) 2 does not allow for a true transfer of the case from one court to the other. The means 76 employed are rather different and worlds apart from such a genuine transfer: The court second seized dismisses the application pending before it, and invites the applicant to renew his application before the other court, the court first seized.249 Playing with words one could feel tempted to say that not the case is transferred but the parties.250 The main difference can be easily identified: the court first seized is not bound by any order the court second seized made as it would be if there was a true transfer since the binding force of such order would be essential for the transfer becoming effective and efficient. (3) 2 only applies if the proceedings are covered by (3) 1 and if the court first seized has 77 accepted jurisdiction. The opening words “in that case” were inserted to make this unambiguously clear and to link the second clause to the first and to the preconditions spelled out 243 244 245 246 247 248 249 250

Dörner, in: Saenger, Art. 19 note 1; Hausmann, A note 131. Infra Art. 19 note 77 (Mankowski). Report Borrás para. 55. Malatesta, in: Corneloup, Art. 19 note 5. Urs Peter Gruber, FamRZ 2000, 1129, 1134. For a different view see Hans-Josef Vogel, MDR 2000, 1045, 1049. A practical example is provided by Trib. Belluno RDIPP 2011, 727, 729. See Rb. ’s-Gravenhage NIPR 2002 Nr. 95 p. 184.

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there.251 As a consequence, transferring an application to the court first seized remains impossible until the court second seized has declined jurisdiction according to (3) 1. One step has to be taken after the other, and a court which has not declined its own jurisdiction yet, would act inconsistently if it transferred the case to another court, though. 78 (3) 2 seems to cater in particular for the situation where a different kind of proceeding was

brought before the court second seized.252 Its practical importance might arise in particular where the second kind of proceeding goes beyond the first one.253 If 3 (2) was intended to focus on facilitating cross-petitions for divorce in pre-existing divorce cases, it would be narrowed down to a rather impractical and unlikely contingency.254 79 Contrary to what the Report Borrás suggests,255 (3) 2 does not autonomously constitute

jurisdiction, but does not establish any ground of jurisdiction at all.256 One has to recall that it requires as a prerequisite that the court first seized has already accepted jurisdiction over the matter. Hence, the court first seized can only be applicable by virtue of Arts. 3 et seq. and on no other ground. The court first seized must decide whether it has jurisdiction to entertain the transferred case. (3) cl. 2 does not prevail over the rules on jurisdiction and does not contain any guarantee in the applicant’s favour that after the transfer the court then seized will positively ascertain its jurisdiction. In most cases, Art. 4 will help nonetheless provided that the party applying for the transfer has been the respondent in the proceedings initially pending before the court first seized.257 80 (3) 2 gains its core importance insofar as it inhibits raising any objections which the national

law of the court first seized might ordinarily have in store against subsequent or belated applications.258 In particular, time limits as to be found in that law are to be disregarded since (3) 2 enjoys the primacy and superiority of EU law over national law.259 What is permitted by (3) 2 must not be barred by national law. (3) 2 must be allowed to exude its effet utile. b) Consequential questions 81 (3) 2 generates quite some consequential questions which it does not address openly. The

program designed by the EU legislator is rather sketchy and pointillist than comprehensive and cries out rather loudly for gap-filling. This might in turn trigger criticism.260

251 252 253

254 255 256

257

258

259

264

Report Borrás para. 55. Ní Shúilleabháin para. 5.07. Urs Peter Gruber, FamRZ 2000, 1129, 1134; Urs Peter Gruber, in: Nomos Kommentar BGB Art. 19 note 25; Rolf Wagner, FPR 2004, 286, 288; Dilger, in: BBGS Art. 19 note 41 (2005); Simotta, in: Fasching/Konecny, Art. 19 note 56. Ní Shúilleabháin para. 5.07. Report Borrás para. 55. See only Rauscher, in: Rauscher, Art. 19 note 53; Simotta, in: Fasching/Konecny, Art. 19 note 52 with ample references. Hausmann, EuLF 2000-01, 345, 347; Hausmann, A note 133; Rolf Wagner, FPR 2004, 286, 288; Urs Peter Gruber, in: Nomos Kommentar BGB Art. 19 note 23. See only Spellenberg, in: Staudinger, Art. 19 note 26; Simotta, in: Fasching/Konecny, Art. 19 note 53 with ample references. See only Report Borrás para. 55; Simotta, in: Fasching/Konecny, Art. 19 note 53 with ample references.

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If (3) 2 is seen in isolation, acceptance of jurisdiction by the court first seized itself is not 82 guaranteed by the very rule itself. The jurisdiction of the court first seized must be determined by virtue of Arts. 3–15.261 As far as competing actions are concerned, jurisdiction may, in dubious cases, be established under Art. 5. Yet relating back to (3) 1 as defining the conditions precedent for a “transfer” of the case, clarifies the matter and assures the applicant that a negativer Kompetenzkonflikt (negative conflict of jurisdictions) cannot arise. The court first seized must have accepted jurisdiction before the “transfer” can be implemented.262 Other consequential questions follow suit, in particular, which law shall be applicable for 83 which aspects.263 Nonetheless, the starting point should be the private international law of the forum where claims are unified after the transfer. Matters become even more complicated where the law applicable from the perspective of the court first seized does not provide for exactly the legal institution (e.g. annulment) which the applicant sought for.264 Merely procedural aspects on the other hand should be dealt with by the national lex fori of 84 the sole court before which the court is pending after the “false transfer”. For instance, consolidation of action might be an issue. If the parties have appeared in the same roles in both sets of proceedings respectively, the answer might be a subjektive Klagehäufung or any other mode of dealing with concurrent claims by the same party.265 If party roles have been reversed the scenario comes close to a counter-claim.266 The option opened by (3) cl. 2 ceases to exist when the court first seized has given final and 84a binding judgment as to substance267 or dismissed the case for good. If the case as to substance has reached the appellate instances in the State of the court first 84b seized the ratio to join cases at first glance appears to favour that the transferred case should immediately proceed to that higher instance. Yet this might be incompatible with the appeal rules of the respective lex fori. Furthermore, it might bereave the party applying for the “false transfer” of the entry instance for its case. The better solution appears to refer to the rules of the lex fori of the court first seized on joined cases and the judicial conjunction of cases. VII. Anti-suit injunctions In certain instances, parties seek relief against the possibility of being sued abroad by asking 85 the court for an anti-suit injunction prohibiting their opponent from commencing proceedings elsewhere. The anti-suit injunction is a feature common law countries are familiar 260

261 262 263 264

265 266 267

See in particular Bertrand Ancel/Muir Watt, RCDIP 90 (2001), 401, 428–431; Tagaras, in: Mélanges en homage à Jean-Victor Louis (Bruxelles 2003), p. 455, 462–464. Report Borrás para. 55. Supra Art. 19 note 77 (Mankowski). See Borrás, in: Malatesta/Bariatti/Pocar p. 99, 106. Gaudemet-Tallon, Clunet 128 (2001), 383, 403; Bertrand Ancel/Muir Watt, RCDIP 90 (2011), 403, 430; Malatesta, in: Corneloup, Art. 19 note 31. Spellenberg, in: Staudinger, Art. 19 note 27; Simotta, in: Fasching/Konecny, Art. 19 note 55. Spellenberg, in: Staudinger, Art. 19 note 27; Simotta, in: Fasching/Konecny, Art. 19 note 55. Hausmann, A note 133.

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with268 whereas civil law countries do not stock this weapon in their array. Under the Brussels I regime the ECJ has clearly ruled out the admissibility of anti-suit injunctions directed against lawsuits being initiated elsewhere in the EU.269 The case has not been tested under the Brussels II(bis) regime yet, though. Anti-suit injunctions or their lesser interim version, the so-called Hemain injunction,270 are available in England even in matrimonial proceedings.271 The requirements under English law are that England is the natural forum and that the pursuit of foreign proceedings would be vexatious or oppressive.272 86 Yet the solution found under the Brussels I regime should equally be adopted under the

Brussels IIbis regime: Anti-suit injunctions should be deemed inadmissible, and Art. 19 should be held to be the only cornerstone of a solution however imperfect the principle of prior temporis in divorce proceedings might turn out to be.273 Even English courts recognised and acknowledged that the issues which once might have led to an intra-European anti-suit injunction in matrimonial affairs cannot arise anymore since Art. 19 forces to apply the rules of lis alibi pendens.274 VIII. Relation between Art. 19 and Art. 20 87 If a court has to indicate that it lacks jurisdiction, and to stay or dismiss the proceedings

pending before it the very same court could nevertheless consider whether there is a degree of urgency provided for under Art. 20 such that interim orders should properly be made, in effect, on a protective basis.275 88 Art. 19 does not bar any measures under Art. 20 since interim orders and main proceedings

do not have the same cause of action. Mere injunctive relief does not have the same cause of action as the main proceedings.276

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269 270

271 272

273

274 275

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Leading cases in modern time English law: The “Spiliada” [1987] 1 A.C. 460 (H.L.); Société Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] 1 A.C. 871 (P.C.); Airbus Industries GIE v. Patel [1999] 1 A. C. 119 (H.L.); Turner v. Grovit [2002] 1 WLR 107 (H.L.). Turner v. Grovit, (Case C-159/02) [2004] ECR I-3565. Leading and consequently name-giving case was Hemain v. Hemain [1988] 2 FLR 388 (C.A.). For most recent applications see Bloch v. Bloch [2003] 1 FLR 1 (F.D., Munby J.); R v. R (Divorce: Hemain Injunction) (2005] 2 FLR 386 (F.D., Munby J.). de Dampierre v. de Dampierre [19889 1 A.C. 92, 110 (H.L., per Lord Goff of Chieveley). See only Bloch v. Bloch [2003] 1 FLR 1, 11 (F.D., Munby J.); R v. R (Divorce: Hemain Injunction) [2005] 2 FLR 386, 393 (F.D., Munby J.) relying on Société Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] 1 A.C. 871, 896, 899 (P.C., per Lord Goff of Chieveley); Airbus Industries GIE v. Patel [1999] 1 A.C. 119, 134 et seq. (H.L., per Lord Goff of Chieveley). Rauscher, IPRax 2004, 405, 409; Dutta/Christian Heinze, ZEuP 2005, 428, 459; Hau, ZZP Int. 9 (2004), 191, 196 et seq. Otobo v. Otobo [2003] 1 FLR 192, 207 (C.A., per Thorpe L.J.). A v. L (Jurisdiction: Brussels II) [2002] 1 FLR 1042, 1043 (F.D., Judge Garner); see also Font i Segura, REDI 2004, 273, 294. OGH iFamZ 2010, 118; CA Lyon unalex F-2252; CA Bruxelles Rev. trim. Dr. fam. 2013, 263, 270; Rb. Maastricht NIPR 2008 Nr. 32 p. 58; AP Barcelona unalex ES- 519; A v. B [2011] EWHC 2752 (Fam) [35] (F.D., Sir Nicholas Wall P.); Trib. Varese RDIPP 2011, 743, 745; Prütting, in: FS Daphne-Ariane Simotta

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In yet another perspective, injunctive relief must not interfere with Art. 19. Art. 20 cannot be 89 used illegitimately to seize jurisdiction validly vested in the first court.277 Competing sets of injunctive relief may not be deemed as the same cause of action, and the less injunctive relief based on Art. 20 triggers questions of lis pendens and the main proceedings under Art. 19.278 IX. Alleviation by the European Judicial Network? Art. 19 bears obvious problems. Perhaps the creation of the European Judicial Network 90 presents an important opportunity to ensure direct judicial communication to enhance the prospect of judicial collaboration and cooperation across frontiers that could help solve such problems.279 The Good Practice Guide prepared by the EU Commission for the benefit of lawyers and judges throughout the Member States stresses the importance of direct judicial communication, particularly so in its Chapter 10. Judges might see the obvious opportunity for a telephone call or an e-mail to their colleague in the other Member State so that there could be a collaborative and coordinated approach to ensure that the case was, firstly, addressed, by the more appropriate court or the court best suited, secondly, addressed without unnecessary delay, and thirdly, addressed without unnecessary expense.280 Nevertheless, even close judicial cooperation could not and must not overcome the guar- 91 antee given to the parties by the jurisdictional rules of the Brussels IIbis regime. Courts are not at liberty, and do not have discretion, as to whether to assume or to decline jurisdiction under those rules but for Art. 15.281 Not even Art. 19 allows for such discretion, nor would any phone call by a colleague as such induce and entice a judge to effectively transfer the case pending before him to the colleague calling. Coordination is one thing, but dismissing or transferring cases quite another. X. Conflicting matrimonial and ancillary civil proceedings Art. 19 does not establish any rule dealing directly with the case that matrimonial proceed- 92 ings are conflicting with “ordinary” but ancillary civil proceedings,282 nor is any rule specifically designed to this avail to be found in the Brussels Ibis/I Regulations. This applies in particular to conflicts with patrimonial proceedings and maintenance claims.283 Presumably, the respective drafting parties believed such a case to be impossible or very unlikely given the respective scopes of application of the two regimes. Yet there are rare cases where such a conflict can arise. In particular, the civil action brought might serve as a tool to interfere with

277

278

279 280 281 282 283

(2012), p. 437, 439; Hausmann, A note 128; Rauscher, in: Rauscher, Art. 19 note 43. Contra Rb. Roermond unalex NL-785; see also Malatesta, in: Corneloup, Art. 19 notes 33–35. Re ML and AL (Children) (Contact order: Brussels II Regulation) [2007] 1 FCR 475, 485 (F.D., Nicholas Mostyn Q.C.). Rb. Maastricht NIPR 2007 Nr. 288 p. 382; see also Prütting, in: FS Daphne-Ariane Simotta (2012), p. 437, 439–440. Chorley v. Chorley [2005] 2 FLR 38, 45 (C.A., per Thorpe L.J.); Thorpe, March [2005] IFL 3. Chorley v. Chorley [2005] 2 FLR 38, 45 (C.A., per Thorpe L.J.). See in more detail Introduction note 123 (Magnus/Mankowski). OGH SZ 2011/56; Hausmann, A note 122. Marongiu Bonaiuti, Riv. dir. int priv. proc. 2005, 699; Malatesta, in: Corneloup, Art. 19 notes 11, 36. Mistaken Trib. Firenze Riv. dir. int. priv. proc. 2005, 737.

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the matrimonial proceedings or to overcome the dismissal of matrimonial proceedings which were initially applied for by the party now acting as the claimant in the civil action. Prominence was gained by a case284 in which the claimant tried by way of a civil action based on trust to obtain such goals (if only by establishing jurisdiction in another country) which were denied to the respective party when she came only second in establishing matrimonial proceedings and her initial application was accordingly dismissed based on Art. 19 (3). 93 The solution of the conflict heavily depends on whether the matrimonial proceedings pend-

ing were brought first or second: If the matrimonial proceedings became pending after the civil proceedings had been already pending the matrimonial proceedings can be carried forward since their ultimate goal, namely the dissolution of the marriage, can never be reached in ordinary civil proceedings. 94 If the situation is vice versa i.e. if the civil proceedings became pending after the matrimonial

proceedings had been already pending the civil proceedings should be subjected to the treatment which Art. 28 Brussels I Regulation requires for related actions.285 The whole force of developing European legislation in the field of family law is to impose clear and simple rules to establish jurisdiction and to ensure that once primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities.286 It would be quite inconsistent with the objectives and underlying policies of the Brussels IIbis Regulation was the civil court second seized to say that it was perfectly in order to bring civil proceedings which only thinly disguise their true competitive objectives.287 Sitting awkwardly between the scopes of two different instruments must not lead to skipping the solution each of those instruments would employ was it alone and without external interference asked to provide as solution. 95 Generally, the European regime in all its branches provides for some lis alibi pendens rule

along defined lines. Yet these rules work only within their respective system. Nonetheless, the general idea is clearly discernible, and it is a general idea stretching beyond the borders of any of the partial regimes since it is an idea behind. Accordingly, the idea behind Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation on the one hand and the former Art. 11 (2) Brussels II Regulation on the other hand should find exactly the general and overarching application they both deserve and call for. It would be unreasonable to let slip the cases which are not within the finely woven net of any of the particular partial regimes but clearly within a European framework. Spurious elements of this general idea might still be detected in Art. 19 itself at least insofar as it covers so-called “false” lis pendens.288 96 Perhaps the court second seized might additionally mitigate by indicating to the parties to

shift ancillary or accompanying causes to the court seized first with the main cause, e.g. the matrimonial cause.289 Of course, such judicial advice would not be binding upon the parties and is far from any dismissal of applications or petitions concerning these accompanying 284 285 286 287 288 289

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Prazic v. Prazic [2006] 2 FLR 1124 (C.A.). Sceptical Ní Shúilleabháin para. 5.40. Prazic v. Prazic [2006] 2 FLR 1124, 1136 (C.A., per Thorpe L.J.). Prazic v. Prazic [2006] 2 FLR 1124, 1136 (C.A., per Thorpe L.J.). See Malatesta, in: Corneloup, Art. 19 note 6. Rb. Maastricht NIPR 2007 Nr. 191 p. 258.

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causes. Yet it might point to a way out of any stalemate possibly caused by the application of Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation. The next step might be for the judge second seized to inform his colleague sitting in the court seized first about his intention to give such advice and to ask him for some leave as to adding the claims to be transferred without any disadvantages for the respective applicant. Article 20: Provisional, including protective, measures 1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter. 2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

Bibliography Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, RCDIP 94 (2005), 569 Andrae, Zur Abgrenzung des räumlichen Anwendungsbereichs von EheVO, MSA, KSÜ und autonomen IZPR/IPR, IPRax 2006, 82 Arenas García, Crisis matrimoniales internacionales. Nulidad matrimonial, separación y divorcio en el nuevo derecho internacional privado español (2004) Baratta, Il diritto internazionale privato della famiglia, in: Picone (ed.), Diritto internazionale private e diritto comunitario (2004), p. 182 Baruffi, Osservazioni sul Regolamento Bruxelles IIbis, in: Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (2007), p. 175 Boele-Woelki/González Beilfuss, Brussels IIbis: Its Impact and Application in the Member States (2007) Boiché, Mise en œuvre pratique des apports de l’arrêt rendu le 2 avril 2009 par la Cour de justice des Communautés européennes en matière d’autorité parentale, AJ fam. 2009, 94 Brière, Bruxelles IIbis: mesure provisoire sur mesure provisoire ne vaut, D. 2010, 1055 Collienne, Le contentieux familial provisoire: aspects de droit international privé, in: Wautelet (éd.), Actualités du contentieux familial international (2005), p. 147

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Corneloup, Les règles de compétence relatives à la responsabilité parentale, in: Nourissat/Fulchiron (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005), p 69 Espinosa Calabuig, Custodia y visita de menores en el espacio judicial europeo (2007) Feraci, Riconoscimento ed esecuzione all’estero dei provvedimenti provvisori in materia familiare: alcune riflessioni sulla sentenza Purrucker, Riv. dir. internaz. priv. e proc., 1 (2011), 107 Gallant, Responsabilité parentale et protection des enfants en droit international privé (2004) González Beilfuss, Jurisdiction rules in matrimonial matters under Regulation Brussels IIbis, in: Nourissat/Fulchiron (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005), p. 67 van Iterson, Ouderlijke verantwoordelijkheid en kinderbescherming (2011) Janzen/Gärtner, Kindschaftsrechtliche Spannungsverhältnisse im Rahmen der EuEheVO – die Entscheidung des EuGH in Sachen Detiček, IPRax 2011, 158 Kruger/Samyn, Brussels IIbis: Successes and Suggested Improvements, JPIL 12 (2016), 132 McEleavy, The Communitarization of Divorce Rules:

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what impact for English and Scottish law?, (2004) 53 ICLQ 610 Mellone, Provisional Measures and the Brussels IIbis Regulation: An Assessment of the Status Quo in View of Future Legislative Amendments, NIPR 2015, 20 Pirrung, Gewöhnlicher Aufenthalt des Kindes bei internationalem Wanderleben und Voraussetzungen für die Zulässigkeit einstweiliger Maßnahmen in Sorgerechtssachen nach der EuEheVO, IPRax 2011, 50 Pirrung, Grundsatzurteil des EuGH zur Durchsetzung einstweiliger Maßnahmen in Sorgerechtssa-

chen in anderen Mitgliedstaaten nach der EuEheVO, IPRax 2011, 351 Solomon, Brüssel IIa – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409 Tsantinis, Recent ECJ Judgments in Cases of Children Abduction and Parental Responsibility. The ECJ Judgments “Deticek”, “Povse” and “Purrucker”, Int’l Lis, 2010, 118 Vonken (with Schols and Ibili), Internationaal privaatrecht. Deel II: Het internationale personen-, familie- en erfrecht, Deventer, Kluwer, 2016, 419.

Preliminary remarks . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Scope of application of Article 20 1. Temporal scope . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. Geographic scope . . . . . . . . . . . . . . . . . . . . . . . . 14 3. Material scope . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. 20 within the jurisdiction system of the Regulation 1. Independent rule or mere reference to the domestic jurisdiction rules? . . . . . 19

2. Communication between the court taking provisional measures and the court with jurisdiction over the merits 23 Which ‘provisional, including protective measures’ may be requested under Art. 20? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Urgency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 2. Protection of persons or assets within the Member State of the seized court . . 31 3. Temporal limitation . . . . . . . . . . . . . . . . . . . . . 37

I. II. III.

IV.

V.

I. Preliminary remarks 1 Provisional, including protective, measures may be of essential importance in the settlement

of cross-border family disputes. This is especially true in urgent cases, where a provisional arrangement in respect of persons or assets may prove essential while the substance of the matter is (to be) decided elsewhere. It is therefore extremely important to correctly ascertain (i) which court has jurisdiction to grant provisional measures and (ii) under which conditions these courts are empowered to grant interlocutory measures. 2 In cases falling within the scope of the Brussels IIbis Regulation (“the Regulation”), applica-

tions for interim relief can be filed before the court which has jurisdiction as to the substance of the case,1 or before another court, under the conditions set out by Art. 20 of Brussels IIbis Regulation. Accordingly, Art. 20 enables an applicant to seek such measures from that court, 1

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Cf. the formulation of Recital 16 of the Regulation, which reflects that other heads of jurisdiction, besides Art. 20, are also relevant for applications for interim relief. The ECJ has explicitly confirmed that, in the context of the Brussels Convention, the court having jurisdiction over the substance of the matter is also entitled to order provisional and protective measures; cf. Van Uden Maritime BV v. Deco-Line, (Case C-391/95) (1998) ECR I-7091; with respect to the Brussels II-bis Regulation, see, for instance, Health Service Executive (Case C-92/12 PPU), EU:C:2012:255; David Bradbrooke v. Anna Aleksandrowicz (Case C-498/14 PPU), EU:C:2015:3, for situations where interim relief was sought on the basis of jurisdiction

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Article 20

even if, under the Regulation, another court has jurisdiction as to the substance of the case. The specific requirements set out by Art. 20 Brussels IIbis Regulation, as discussed below, do not apply when the court dealing with the merits of the case orders provisional or protective measures. In June 2016, the European Commission published the Proposal for the Brussels IIbis Recast 3 (Proposal for a recast).2 The objective of the recast is to address, where possible, the deficiencies that practice has shown with regard to the application of the Brussels IIbis Regulation and to better protect the best interests of the child by simplifying the procedures and enhancing their efficiency. With regard to provisional, including protective measures, at Art. 12 the Proposal for a 4 recast puts forth the following amendments to Art. 20 of the Brussels IIbis Regulation: 1. In urgent cases, the provisions of this Regulation shall not prevent the courts authorities of a Member State where the child or property belonging to the child is present shall have jurisdiction to take from taking such provisional, including protective, measures in respect of persons that child or assets property in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter. 5

New: In so far as the protection of the best interests of the child so requires, the authority having taken the protective measures shall inform the authority of the Member State having jurisdiction under this Regulation as to the substance of the matter, either directly or through the Central Authority designated pursuant to Article 60.

6

2201/2003 (adapted): 2. The measures referred taken pursuant to in paragraph 1 shall cease to apply when as soon as the court authority of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

Such proposal is succinctly presented in the following paragraphs along with the commen- 7 tary to Art. 20 of the Brussels IIbis Regulation. II. Legislative history Art. 20 of the Regulation has been preceded by Art. 12 of the Brussels II Regulation and 8

2

grounds other than Art. 20. See also the Opinion of A-G Kokott in A, (Case C-523/07), (2009) ECR I-2805 para. 54. See the “Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)”, COM(2016) 411 final of 30 June 2016. On 10 October 2016, both Ireland and the United Kingdom have notified the Council of their intention to participate in the application and adoption of the Brussels IIbis recast. See, respectively, JUSTCIV 256, doc. 13068/16 for Ireland and JUSTCIV 251, doc. 12821/16 for the United Kingdom.

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Art. 12 Brussels II Convention. These three provisions have been drafted in nearly identical terms. Case law and doctrinal writings on the two earlier provisions are therefore, in principle, relevant for the interpretation of Art. 20 and in particular the Explanatory Report to the Brussels II Convention.3 9 In addition, Art. 11 of the 1996 Hague Child Protection Convention4 served as a model for

the drafting of the “provisional forum” in the aforementioned European instruments. Art. 11 of the 1996 Hague Convention is consequently an important cornerstone in the legislative history of Art. 20 Brussels IIbis. As set out below, recent ECJ case law on the latter has referred to Art. 11 as a relevant source for the interpretation of the Regulation’s provision, although significant differences can be noted as to their function and operation within their respective instruments. First, Art. 11 “is manifestly designed to be a rule of jurisdiction”, while Art. 20 of the Regulation is a sui generis provision, with a specific link to the Regulation’s jurisdictional provisions. Second, the recognition and enforcement of (provisional) measures under the Convention and the Regulation operate differently. While the Convention permits a review by the requested State of the international jurisdiction of the court which adopted the measure, this is clearly prohibited by Art. 24 of the Regulation. This is an important factor to take into consideration in assessing the functioning of Art. 20. III. Scope of application of Article 20 1. Temporal scope

10 Application for provisional, including protective, measures may be made on the basis of

Art. 20, when the proceedings on the merits are not still pending. The mere fact that proceedings on the substance of the case have not commenced yet, does not deprive a court of its jurisdiction under Art. 20 of the Regulation.5 11 On the other hand, the measures cease to have effect when final measures are adopted by the

court having substantive jurisdiction as to the substance of the case (Art. 20(2)). A fortiori, a court is no longer empowered to grant provisional measures pursuant to Art. 20 when a judgment on the merits has already been rendered (except of course where, later in time, a change of circumstances so require). In other words, the availability of Art. 20 ranges from 3

4

5

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Recital (3) (in footnote) explicitly refers to the Report Borrás. In the same vein, the ECJ has relied on Art. 20’s precursors to interpret this provision: see ECJ, Purrucker I (Case C-256/09), (2010) ECR I-07353, paras. 84 et seq. Consulted doctrine on Brussels II Convention or Brussels II Regulation: Beaumont/Moir, 1995 Eur. L. Rev. 268; Gaudemet-Tallon, Le Règlement n° 1347/2000 du Conseil du 29 mai 2000: ‘Compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs’, Clunet 128 (2001), 381; Pertegás Sender, Europeanisering van het internationaal procesrecht inzake familiale geschillen, in: Foblets/Hubeau/Meeusen (eds.), Migratie en migrantenrecht (2004), 309 (and further references); Vandekerckhove, Vorlopige of bewarende maatregelen in de EEX-Verordening, in EEX-II en in de Insolventieverordening, in: de Leval/Storme (eds.), Le Droit Processuel & Judiciaire Européen (2003), 119. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, in HCCH Collection of Conventions (1951–2009), also available at www.hcch.net. Rauscher, 238.

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Article 20

the moment the dispute itself occurs up till a decision on the substance of the case is made. In the event that the decision needs to be enforced abroad and provisional measures still need to be kept in place until enforcement occurs, it appears that only the court having jurisdiction as to the substance of the case may order measures that survive after the judgment on the merits has been rendered.6 It should be noted in this respect that the Brussels IIbis Regulation does not include the possibility for an interested party to request protective measures to the court where enforcement takes place or will take place. The ECJ clarified in Purrucker II that there is no overlap between an action brought to obtain 12 provisional measures and an action on the merits even though both actions are concerned with the right of custody. In fact, since provisional measures within the meaning of Art. 20 (1) Brussels IIbis Regulation cease to apply when the court which has jurisdiction on the matter has taken the measures that it considers appropriate, there is no possibility that decisions on provisional measures and a judgment on the substance handed down by a court that has jurisdiction as to the substance under the Regulation contradict each other.7 Art. 12(2) of the Proposal for a recast, amending Art. 20 of the Brussels IIbis Regulation, 13 maintains the same temporal limitations for the measures taken pursuant to paragraph 1. 2. Geographic scope The wording of Art. 20(1) explicitly refers to cases where the Brussels IIbis Regulation 14 applies to the substance of the matter. Accordingly, it must be considered whether the application of Art. 20 is subject to the condition that the case on the merits must fall within the geographic scope of the Regulation.8 That is, is it possible for a Member State court to take provisional measures under Art. 20 when the substance of the case must be decided by the courts of a third State, or Denmark? In the affirmative, subsequent questions may arise as to the legal basis for the articulation of provisional and definitive measures.

6

7

8

See, e.g., Tribunale di Cagliari, 12 December 2015, declining jurisdiction over provisional measures in favour of the Dutch courts (where an appeal was pending on the right to custody) on the grounds that the adoption of the provisional measures requested by the mother would have implied a substantial revision of the exercise of access rights granted to the father. Purrucker II, Case C-296/10, (2010) ECR I-11163, para. 71. See also A-G Sharpston in her Opinion in Purrucker I (Case C-265/09), (2010) ECR I-07353, para. 169, taking the view that a court acting by virtue of Art. 20 alone does not enjoy any jurisdiction conferred by the Regulation and, rather, it is merely “not prevented” from taking such urgent measures as are necessary and as are available under national law. The very fact that such court acts solely on the basis of Art. 20 means that its jurisdiction cannot be established for the purposes of Art. 19, so that the proceedings before it do not trigger the rules on lis pendens. See esp. Feraci, Riconoscimento ed esecuzione all’estero dei provvedimenti provvisori in materia familiare: alcune riflessioni sulla sentenza Purrucker, Riv. dir. internaz. priv. e proc., 1 (2011), 107; Mellone, Provisional Measures and the Brussels IIbis Regulation: An Assessment of the Status Quo in View of Future Legislative Amendments, NIPR 2015, 26 (referring to provisional measures as a “separate microsystem”. Gallant, 122; Corneloup, 83. Cf., for a similar question with regard to the substantive scope of application, infra, para. 9.

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15 It is submitted that, in the absence of any indication to the contrary,9 Art. 20 does not apply

when the substance of the matter falls outside the territorial scope of application of the Regulation.10 However, this should not preclude provisional measures being adopted by courts in Member States when other international or national instruments confer international jurisdiction upon them. In particular, the 1996 Hague Child Protection Convention, which is in force in all Member States,11 applies with regard to the protection of children, allowing Art. 11 or Art. 12 of the Convention to be invoked for the taking of urgent measures and measures of a provisional character, respectively. 3. Material scope 16 It is debated in legal writing whether Art. 20 (and its predecessor, Art. 12 Brussels II) only

authorises the adoption of provisional and protective measures in relation to matters covered by the Regulation or, alternatively, whether such measures can affect matters beyond the material scope of the Regulation. The Report Borrás appears to suggest that the corresponding Art. 12 of the Brussels II Convention confers jurisdiction for measures beyond the material scope of the Convention.12 With respect to the Brussels Convention, the ECJ held in De Cavel I that “in relation to the matters covered by the Convention, no legal basis is to be found therein for drawing a distinction between provisional and definitive measures”13 and confirmed this limitation in the W./H. judgment: “it (that is, the specific jurisdiction rule for provisional measures) may not be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it.”14 Accordingly, the prevailing doctrinal view is that Art. 20 should not apply beyond the general 9

10

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13

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To date, the ECJ has dealt with one case concerning the Brussels IIbis Regulation with a close link with a third State: Sundelind López, (Case C-68/07) (2007) ECR I-10403; RCDIP, 2008, 347, with note Gallant. The ECJ held that “Regulation No. 2201/2003 applies also to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that Regulation, grounds which, according to Recital 12 in the preamble to Regulation No. 1347/ 2000, are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction”. A contrario it could be argued that the taking of provisional measures in cases where the Regulation does not apply to the substance of the matter does not fulfill the requirement of a “real link”. Cf. Andrae, IPRax 2006, 82, 85; see also the considerations of van Iterson, Ouderlijke verantwoordelijkheid en kinderbescherming (2011) pp. 129–130. Council Decision 2008/431/EC of 5 June 2008 authorizing certain Member States to ratify, or accede to, in the interest of the Community, the 1996 Convention, O.J. L 151, 36. The 1996 Child Protection Convention has attracted 45 Contracting States and 2 more have signed the Convention, see the Convention’s status table, available at www.hcch.net – last updated on 7 October 2016). Report Borrás para. 59. It should be noted that the ECJ specifically referred to this paragraph in the Report Borrás in the Purrucker I judgment. However, the particular issue discussed was the territorial effect of the measures, and not the substantive scope of Art. 20. See Purrucker I (Case C-256/09), (2010) ECR I-07353 para. 85. Jacques de Cavel v. Louise de Cavel, (Case 143/78) (1979) ECR 1055 (placing assets under seal in the course of divorce proceedings); W. v. H., (Case 25/81) (1982) ECR 1189 (provisional order to deliver a document to prevent its use as evidence in proceedings concerning the man’s administration of his wife’s assets). W. v. H. (Case 25/81), (1982) ECR 1189, 1204.

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Chapter II: Jurisdiction

Article 20

delimitation of the Regulation, that is, for matters relating to divorce, legal separation or annulment and for matters of parental responsibility.15 Furthermore, an extensive material scope for the provisional forum ex Brussels IIbis seems 17 difficult to accept, now that other EU’s instruments apply to other connected issues such as maintenance, matrimonial property or protection measures. In particular, interim measures on maintenance are governed by the Maintenance Regulation.16 Provisional measures on matrimonial property or property consequences of registered partnerships are to be taken in accordance with relevant EU Regulations17 and other applicable international and national rules. Protection measures, also those of a provisional character, will fall under the scope of Regulation No 606/201318 insofar as there is no overlap with the Brussels IIbis Regulation. In case both Regulations are applicable, Brussels IIbis prevails.19 Consequently, Art. 20 cannot be relied on to bring other connected provisional measures, 18 requested in the framework of the same proceedings, within the material scope of the Brussels IIbis Regulation.20 IV. Art. 20 within the jurisdiction system of the Regulation 1. Independent rule or mere reference to the domestic jurisdiction rules? The reference in Art. 20 (1) to measures “available under the law of (a) Member State” has 19 given rise to hesitations as to the autonomy of Art. 20. Does Art. 20 itself create jurisdiction or does it merely refer to the jurisdictional rules of the lex fori?

15

16

17

18

19

20

Arenas García, Crisis matrimoniales internacionales. Nulidad matrimonial, separación y divorcio en el nuevo derecho internacional privado español (2004) p. 176; McEleavy, (2004) 53 ICLQ 610, 632; González Beilfuss, in: Nourissat/Fulchiron (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005), p. 67; Stone, EU Private International Law – Harmonization of Laws (2006) p. 397. Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, O.J. 10/01/ 2009, L 7/1. See Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183, 8 July 2016, p. 1–29 and Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships“ p. 30– 56. Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters, OJ L 181 of 29 June 2013. Dutta, Cross-Border Protection Measures in the European Union, JPIL 12 (2016), 180–181. See also Recital 11 of the Protection Measures Regulation. For a critical view on this fragmentation and some constructive proposals for the future, see Arenas García, Algunas propuestas de regulación de las crisis matrimoniales internacionales, in: Alvárez González (dir.), Estudios de derecho de familia y de sucesiones (2009), p. 43.

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20 A-G Bot referred to this issue in his Opinion on the Detiček case. He considers that, since

Art. 20 is not a criterion of general jurisdiction “but a permission to take action under the dual pressures of the child being in danger and the need for urgent action to take the child out of danger”, its effect “is to enable the lex fori to be applied irrespective of any criterion of initial jurisdiction”. Further to this Opinion, the ECJ referred to Art. 20 as “an exception to the system of jurisdiction laid down by the Regulation”.21

21 Nevertheless, the above considerations do not lead to a mere renvoi to the respective na-

tional heads of jurisdiction on provisional measures, as Art. 20 itself contains its own applicability criteria. The relevant test is hence whether the measures available under the law of the requested Member States fall within the autonomous definition of “provisional, including protective measures”. In fact, it is not only the nature of the measures adopted by the courts (provisional and protective measures not concerning the substance of the case), which determines whether those measures fall within the scope of Art. 20, rather other specific requirements have to be satisfied.22 First, measures under Art. 20 may be adopted only by courts whose jurisdiction is not based on another provision of the Regulation. Moreover, those courts are entitled to take provisional and protective measures only where three cumulative conditions are satisfied. To that extent, the recent case law of the ECJ seams to consolidate the autonomous nature of Art. 20, in line with case law on Art. 31 of the Brussels I Regulation.23 22 The Proposal for a recast of the Brussels IIbis Regulation introduces two changes in this

regard. First, it extends the scope of the provision, in line with Arts 11 and 12 of the 1996 Hague Child Protection Convention, to “authorities” (instead of “courts”). This extension is to be welcomed: besides courts, other diverse competent bodies such as Central Authorities or other public authorities may be called to grant provisional relief. Second, and most importantly, the Proposal for a recast introduces a proper jurisdiction rule. If accepted, this new ground of jurisdiction is to operate as an independent and autonomous basis.24 2. Communication between the court taking provisional measures and the court with jurisdiction over the merits 23 In the case of A, the ECJ was asked whether the provisional nature of measures taken on the

basis of Art. 20 implied that the seized court was required to ensure a follow-up. In particular, the Finnish court asked whether such a matter had to be transferred to the court having jurisdiction on the merits on its own initiative.

21

22

23

24

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See the Opinion of A-G Bot, (2009) ECR I-12196 paras. 82–85 and Detiček, (Case C-403/09 PPU), (2009) ECR I-12193 para. 38. Detiček (Case C-403/09 PPU), (2009) ECR I-12193 para. 40, and also in Purrucker I (Case C-265/09), (2010) ECR I-07353, paras. 64 et seq. See the obiter in the Opinion of A-G Kokott, (2009) ECR I-2805 para. 57, where she refers to this “question debated in legal writing”. See, for an overview, Andrae, IPRax 2006, 82, 85–86, and the authors’ personal view in favour of the autonomous character of Art. 20. See Recital 17 of the Proposal. See also the support for this proposal in the GEDIP Resolution of September 2016, the “Milan 2016 Resolution”, available at http://www.gedip-egpil.eu/gedip_document s.html.

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Article 20

Interestingly, the ECJ inferred an implicit duty of information for the seized court from the 24 interpretation of Art 20. It held that, “in so far as the protection of the best interests of the child so requires, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Art. 53 of the Regulation, the court of another Member State having jurisdiction”.25 In Purrucker I, the ECJ reiterated the importance of transparent information about the grounds on which a provisional measure has been adopted.26 The ECJ’s position is a promising indication that mutual co-operation and respect between 25 the courts in different Member States forms an indispensable component for the application of Brussels IIbis. However, this presupposes not only a sufficient level of awareness about the Regulation27 but also judicial engagement despite complex legal, administrative and linguistic barriers. Implementing measures from the Member States and adequate informative tools about the implementation of the Regulation (e.g., the European Judicial Atlas, the European Judicial Network, an updated Guide for the Application of the Regulation) should more than ever reveal their value. In line with the above, the Proposal for a recast of the Brussels IIbis Regulation puts forth an 26 additional and novel provision in Art. 12(1): the authority having taken the protective measures bears the duty to inform the authority of the Member State having jurisdiction under the Regulation as to the substance of the matter, either directly or through the Central Authority. It is not clear why the Proposal limits this information duty to a subcategory of provisional measures, namely those of a protective character. It would appear that this novel provision should apply to any measures taken pursuant to Art. 12 of the Proposal for a recast. However, as pointed out in Recital 17 of the Proposal for a recast, the failure to comply with such duty should not, as such, be construed as a ground for the non-recognition of the measure in other Member States.28 V. Which ‘provisional, including protective measures’ may be requested under Art. 20? Art. 20 refers to provisional, including protective measures “as may be available under the 27 law of (the forum) State”. The law of the forum will in principle determine which provisional, including protective measures, are available in the case at hand as well as which procedural rules need to be followed. However, not every provisional measure available under the national legal system will automatically fall within the scope of Art. 20. The ECJ in recent case law has indeed taken care to emphasise that there are specific limits imposed by

25

26 27

28

A (Case C-523/07), (2009) ECR I-2805 para. 66. The ECJ went further than A-G Kokott’s Opinion, where she argued that nothing prevented the court which has taken the provisional measures from informing another court which, in its opinion, has jurisdiction over the substance of the matter. Purrucker I (Case C-265/09), (2010) ECR I-07353, para. 75. Boele-Woelki/González Beilfuss, Brussels IIbis: Its Impact and Application in the Member States (2007) p. 26; see also the criticisms about the unclear formulation of the Spanish judgment whose enforcement in Germany led to the ECJ’s judgment in Purrucker I: Pirrung, IPRax 2011, 351, 353. See further Art. 48 and Recital 40 of the Proposal on the proposed applicability of the rules on recognition and enforcement of provisional, including protective, measures ordered by an authority on the basis of Art. 12 of the Proposal for a recast.

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the drafting of Art. 20 (1) itself.29 It follows that certain provisional, including protective measures “available under the law of (a) Member State”, may exceed the Regulation framework for provisional jurisdiction. 28 What then are the limits set out by Art. 20? First, this provision may only be invoked in

urgent cases. Secondly, provisional, including protective measures within the meaning of Art. 20(1) must respond to a specific objective, that is, the protection of persons or assets. Third, the requested measures must be geographically and temporally delimited. 1. Urgency 29 Art. 20 establishes the urgency requirement as a sine qua non condition for its application.30

In that respect, the Brussels IIbis Regulation follows the wording of other EU and international instruments applicable to international family and child protection disputes, like the former Brussels II Regulation or the 1996 Hague Child Protection Convention (Art. 11). 30 The relevance of the urgency requirement raises indeed the question of how urgency must be

assessed. The notion of urgency is not defined in the Regulation and a reference to national law seems difficult to accept, in the light of the diverging national criteria on the condition of urgency.31 It is hoped that the concept of urgency develops as an autonomous concept of EU law, based on the possibility that the interests at stake are protected in the period that is likely to lapse before the authorities which have jurisdiction over the substance of the case can take the necessary measures. An urgent situation occurs when there is a need that, having regard to the specific circumstances of the case, cannot be safeguarded by measures on the merits.32 In the first preliminary ruling on the question, the ECJ held that the urgency requirement was met “in a situation likely seriously to endanger (the children’s) welfare, including their health or their development”.33 In Detiček, the ECJ further specified that, in the case of a provisional measures concerning parental responsibility, “the concept of urgency in Art. 20 relates both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance”. Most importantly, however, the ECJ did not accept that the condition of urgency is met on the grounds of the change of circumstances derived from the child’s integration and settlement into the new environment where he/she has been wrongfully removed or retained.34

29

30

31 32

33

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A, (Case C-523/07), (2009) ECR I-2805 para. 47. See also Baratta, in: Picone (ed.), Diritto internazionale privato e diritto comunitario (2004), p. 182. See, e.g., Krajský soud v. Českých Budějovicích file No 5 Co 32/2009 of 14 January 2014; Tribunale di Torino, 16 January 2015. Vandekerckhove (fn. 3), p. 119, 134. Compare with Lagarde, Explanatory Report on the 1996 Hague Convention on Child Protection, in Proceedings of the Eighteenth Session, nr. 68, 567: urgency is associated with an “irreparable harm for the child”. For illustrations in the context of Art. 20 Brussels IIbis: Rb. Groningen, NIPR 2008 Nr. 25 (urgency admitted); Rb. Maastricht, NIPR 2008, Nr. 32 (urgency rejected); Aix-en-Provence, 18 November 2004, cited by Collienne, in: Wautelet (éd.), Actualités du contentieux familial international (2005), p. 147, 162 (urgency admitted). A, (Case C-523/07), (2009) ECR I-2805 para. 48.

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Chapter II: Jurisdiction

Article 20

2. Protection of persons or assets within the Member State of the seized court Secondly, Art. 20 can only be relied upon for the protection of persons or assets within the 31 Member State of the seized court. This requirement is two-fold. On the one hand, a protective finality of the requested measures is needed. In the context of 32 matrimonial disputes, it may be difficult to reconcile the limited scope of application of the Regulation (i.e., divorce, legal separation and marriage annulment) and the aim envisaged for measures granted on the basis of Art. 20. Only specific measures like an authorization to abandon the spouses’ common residence or a provisional allocation of the spouses’ common residence to one of them fulfil these conditions.35 The updating of the civil-status records with the divorce claim may also be available under Art. 20.36 In the context of measures in relation to parental responsibility, the range of potential 33 provisional, including protective measures is much broader. Most measures to protect a child or a child’s assets available under the relevant national law shall be exercised in crossborder disputes by means of Art. 20 (provided the other applicability conditions are met). Provisional placement in a caring institution and provisional measures relating to the taking care of a child fall within the scope of that provision, regardless of the fact that such measures have to be requested to administrative authorities and are considered public measures under the applicable law.37 Furthermore, provisional arrangements on care, custody and rights of access with regard to children, including in cases of child abduction, are available under Art. 20. As noted by the ECJ in Deticek,38 such measures may explicitly refer to a child or children but they also affect the child’s parents so “persons” within the meaning of Art. 20 should be broadly understood. On the other hand, a strict condition of territoriality applies. Art. 20 authorises courts to take 34 measures with regards to persons or assets that are present in the Member State of the court seized.39 This is a test different to the one the ECJ has developed with regards to Art. 35 of 34

35

36

37

38

39

Detiček (Case C-403/09 PPU), (2009) ECR I-12193, paras. 42–49; Health Service Executive (Case C-92/12 PPU), EU:C:2012:255, para. 131. Contra Collienne (fn. 32), p. 147, 173. This author suggests a more reduced scope of application on the basis of the exclusion of “any other ancillary measures” from the Regulation (Recital n°8). In the same vein van Iterson (fn. 10), p. 125. Arenas García, Crisis matrimoniales internacionales. Nulidad matrimonial, separación y divorcio en el nuevo derecho internacional privado español (2004) p. 317. A, (Case C-523/07), (2009) ECR I-2805 para. 22, with reference to the previous ECJ judgment (Case C-435/06, (2007) ECR I-10141. See also Dutta, Cross-Border Protection Measures in the European Union, JPIL 12 (2016), 169–184, esp. 174. Detiček (Case C-403/09 PPU), (2009) ECR I-12193, paras. 50–52. See Kruger/Samyn, Brussels IIbis: Successes and Suggested Improvements, JPIL 12 (2016), 132, esp. 149, observing that the measures are also aimed at the parents in the sense that they influence their exercise of parental responsibility. In Detiček, the ECJ held that Art. 20 cannot be applied if one of the persons concerned by the requested measure is not present in the Member State of the court seized. This restrictive approach has been criticised by those who state that the presence in that State of the person or good targeted by the requested measure is sufficient: A-G Sharpston, Opinion in Purrucker I (Case C-265/09), (2010) ECR I-07353, para. 147; Janzen/Gärtner, IPRax 2011, 158, 164–165; van Iterson (fn. 10), pp. 127–128.

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Brussels I Recast or Art. 31 of Brussels I, i.e., the existence of a real connecting link with the subject-matter of the requested measure. 35 From a practical point of view, the condition requiring provisional measures to be filed at the

court of the place where the requested measures is to be enforced is not surprising. In urgent cases concerning international family disputes, it would seem counter-intuitive to request measures where the targeted individuals or assets are not present. Effective and timely enforcement indeed presupposes the proximity between the request for provisional measures and the targeted subject matter of those measures. 36 It is conceivable that the individuals or assets subject to the provisional measures are re-

located to another State after the taking of the measures. This relocation should have no impact on the applicability of Art. 20. In this respect, it is sufficient that the measure at stake relates to persons or assets located within the territory of the seized Member State. However, the relocation gives rise to other difficulties because the measures then need to be enforced abroad. It is important to note in that respect that the ECJ held in Purrucker I that the rules in Chapter III of the Regulation are not applicable to the measures ordered on the basis of Art. 20.40 3. Temporal limitation 37 Art. 20 (2) provides that the taken measures are of temporary nature: they cease to apply

when the court vested with jurisdiction under the Regulation Brussels IIbis as to the substance of the matter has taken the appropriate measures. In A, the ECJ emphasized the provisional nature of measures requested on the basis of Art. 20,41 without giving further consideration to the concerns raised by the European Commission on the inherent risks that proceedings of a provisional nature lead de facto to measures without time-limit because no action is undertaken as to the substance of the case. A-G Kokott stated that the length of time for which the provisional measures remain in force cannot a priori be considered problematic because the fundamental objective is to avoid a lacuna in the care arrangements (in parental responsibility cases). Furthermore, it is within the concerned persons’ reach to terminate the effects of provisional measures by filing proceedings on the merits.42 38 The temporal limitation imposed by Art. 20(2) constitutes an autonomous requirement

under the Regulation, irrespective of the domestic law of the seized court. Certain provisional measures available under national law do not impose a time-limit because their function resides in the urgent settlement of a family dispute, which may persist as long as the arrangement is accepted and complied with by the parties at stake.43 When, however, the national court takes such measures on the basis of Art. 20 Brussels IIbis, the parties must at least be aware that a temporal limitation applies by operation of EU law. This does not however entail that the court itself must put a time-limit on the taken measures (provided 40 41 42 43

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Purrucker I (Case C-265/09), (2010) ECR I-07353, paras. 83 and 87. A, (Case C-523/07), (2009) ECR I-2805 para. 65. A-G Kokott, (2009) ECR I-2808 paras. 61–64. In Belgium, Art. 223 Civil Code and Art. 1280 Code of Civil Procedure, as discussed by Collienne (fn. 32), p. 147, 165–166 and confirmed (with regard to Art. 12 Brussels II) by Trib. civ. Bruxelles tijdschrift@ipr. be, 2005/1, 36 and Trib. civ. Bruxelles [email protected], 2005/1, 33.

November 2016

Article 21

Chapter III: Recognition and Enforcement

the other conditions for Art. 20 to apply are met). The effective length of time for which those measures remain in force depends on further action taken on the merits.

Chapter III: Recognition and Enforcement Section 1: Recognition Article 21: Recognition of a judgment 1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. 2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State. 3. Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised. The local jurisdiction of the court appearing in the list notified by each Member State to the Commission pursuant to Article 68 shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought. 4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

Bibliography Andrae/Heidrich, Anerkennung ausländischer Entscheidungen in Ehe- und Lebenspartnerschaftssachen, FPR 2004, 292 Biagioni, Il nuovo Regolamento comunitario sulla giurisdizione e sull’efficacia delle decisioni in materia matrimoniale e di responsabilità dei genitori, Riv.dir. int. 87 (2004) 991 Caro Gándara, De la desconfianza recíproca al reconocimiento mutuo, una laboriosa transición: La Ley 2011, no. 7641, p. 1 Dutta, Die Entscheidungsbescheinigungen nach der Brüssel IIa-Verordnung – ein Erfolgsmodell?, StAZ 2011, 33 Font i Segura, El progresivo avance del derecho comunitario en materia de famiglia: un viaje inconcluso de Bruselas II a Bruselas IIbis, REDI 56 (2004) 273

Kurt Siehr

Garau Sobrino, La declaración de ejecutividad automática. ¿Hacia una nueva teoría general del exequátur?, AEDIPr 4 (2004) 91 Gołaczyński, Jacek, Prawo prywatne międzynarodowe (4. ed. Warszawa 2015) p. 84 Gonzalo Quiroga, La reforma de Bruselas II: Aspectos prácticos sobre su aplicación en el marco del reconocimiento y la ejecución, in: Calvo Caravaca/Castellanos Ruiz (eds.), El derecho de famiglia ante el siglo XXI: aspectos internationales, (Madrid 2004) p. 469 de Leval, L’évanescence de l’exequatur dans l’espace judiciaire européen, in: Studi di diritto processuale civile in onore di Giuseppe Tarzia I (Milano 2005) p. 431 Helms, Die Anerkennung ausländischer Entschei-

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dungen im Europäischen Eheverfahrensrecht, FamRZ 2001, 257 Hohloch, Internationales Verfahrensrecht in Eheund Familiensachen, FF 2001, 45, 50 Mosconi, Giurisdizione e riconoscimento delle decisioni in materia matrimoniale secondo il Regolamento comunitario del 29 maggio 2000, Riv.dir.proc. 56 (2001) 376, 392 Mosconi, Un confronto tra la disciplina del riconoscimento e dell’esecuzione delle decisioni straniere nei recenti regolamenti comunitari, RDIPP 37 (2001) 545 Spellenberg, Anerkennung eherechtlicher Entscheidungen nach der EheGVO, ZZP Int. 6 (2001) 109 Toscano, Ehescheidungen mit grenzüberschreitendem Bezug (Frankfurt/Main 2011) p. 103

Uccella, Il diritto comunitario sulle decisioni in materia matrimoniale e di responsabilità genitoriale (Salerno 2005) p. 47 Wautelet/Collienne, Règlement (CE) n° 2201/2003 du Conseil du 27 novembre 2003 – jurisprudence commentèe, in: van Drooghenbroeck (ed), Droit judiciaire européen et international (Bruxelles 2012) p. 363 Winkler v. Mohrenfels, Die Rom III- und Brüssel IIaVerordnungen in der deutschen Rechtspraxis, ZVglRWiss 115 (2016) 650 Kompletterande bestämmelser till den nya Bryssel II-förordningen: Statens Offentliga Utredningar (SOU) 2004:80, p. 48 ff., 71 ff.

Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Scope of Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Recognition without special procedure 1. Basic policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. Up-dating civil-status records . . . . . . . . . . 9 3. Meaning of Recognition . . . . . . . . . . . . . . . . 10 Decision on the recognition or non-recognition

1. Need for a decision on recognition . . . . 11 2. Procedure a) Reference to Articles 28–36 . . . . . . . . . . . . . 14 b) Stay of proceedings . . . . . . . . . . . . . . . . . . . . . . 15 3. Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 4. Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Incidental recognition or non-recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. II. III.

IV.

V.

I. Ratio legis 1 One of the main objectives of all European instruments on the recognition of foreign

judgments is the idea to achieve “free movement of court decisions” and to create a “genuine judicial area” within the “area of freedom, security and justice” insofar as all judgments given in the Member States and covered by European instruments should be recognized European-wide without a formal recognition procedure. Therefore it is no surprise that Art. 21 (1) has literally the same wording as Art. 36 (1) Brussels Ibis Regulation. The party seeking or contesting recognition has, however, to produce three documents mentioned in Art. 37: (1) the judgment which satisfies the condition necessary to establish its authenticity; (2) the certificate referred to in Art. 39 and Annexes I or II; (3) in case of a judgment given in default, the original or certified true copy of the document of correct service must be produced or any document indicating that the defendant has accepted the judgment unequivocally. In addition, translations of these documents may be necessary to be produced according to Art. 38 (2), unless the annexes mentioned in Article 39 can also be understood correctly by the judge of enforcement.1

1

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OLG München 22 January 2015, FamRZ 2015, 777 = IPRax 2016, 379 with comments by Siehr at p. 344.

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Article 21

II. Scope of Art. 21 Art. 21 et seq. cover all judgments given under the Brussels II or IIbis Regulation, i.e. 2 judgments on matrimonial matters and matters of parental responsibility given in a Member State since 1 March 2001 (Article 64 Brussels IIbis Regulation).2 They do not cover the other collateral matters decided by a court seized of matrimonial matters or matters of parental responsibility as defined by Art. 1 (1) and (2). Maintenance decisions, e.g., handed down by a divorce tribunal have to be recognised under the Maintenance Regulation no. 4/2009 of 2008. It does not matter whether the decision is called judgment, decree or order. According to 3 Art. 2 (4), every decision dealing with matrimonial matters or matters of parental responsibility is considered to be a judgment and must be recognised under the Brussels IIbis Regulation. The decision may be given by a court or by a public authority as, e.g., a registrar or any other government office: Article 2 (1). In some European countries religious courts have limited jurisdiction with respect to family 4 matters concerning members of the respective religion. This is the case in Greece for the Muslims living in Western Thrace (Northern Greece). The Mufti of this group has concurrent jurisdiction with respect to divorce and children’s rights. State courts confirm the decisions of the Mufti that these decisions do not violate Greek law.3 Of course, the Mufti is no “authority in the Member State” (cp. Article 2 No. 1) and the decision of the Mufti cannot be recognised under the Brussels IIbis Regulation.4 But the decision of confirming Greek State court should be recognised.5 The Brussels IIbis Regulation is in force in 27 Member States of the European Union. It is not 5 in force in Denmark: Art. 2 (3) and Recital 31. Therefore Danish divorce decrees and decisions on matters of parental responsibility will not be recognised under the Brussels IIbis Regulation but according to other international instruments or according to national law on recognition of foreign judgments. This will change as soon as Denmark decides to take part in the “judicial area” of the Brussels IIbis Regulation. In case, the United Kingdom declares the Brexit, the EU Regulations do not apply anymore 6 directly as soon as the Brexit is effective. Unless these Regulations are turned into national law or transferred into conventions with the EU, they are not applicable at all in the UK. With respect to provisional and protective measures taken according to Article 20 in a 7 Member State, an important distinction has to be drawn. If the authority based the provisional or protective measure on heads of jurisdiction of the Regulation, the measure has to be

2

3 4 5

Rb. Zeeland-West-Brabant 14 October 2013, NIPR 2013, No. 33 at p. 76; Rb. Zutphen 8 February 2012, NIPR 2012 No. 192 at p. 256; D.T. v. F.L. (Divorce: Jurisdiction), [2009] 1 Irish R. 434 (Sup.Ct); LG Linz 7.5.2009. EFSlg. 46 (2009) 414 (No. 124.688); Rauscher in: Rauscher Art. 21 notes 5–8. Vrellis, Private International Law in Greece (Alphen aan den Rijn 2011) pp. 28–31. OLG Frankfurt a.M. 16 January 2006, IPRspr. 2006 No. 146. Different OLG Frankfurt a.M. 16 January 2006, last note.

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recognised under Art. 21.6 If the authority, however, acted under national law of jurisdiction, the measures taken may be recognised under international conventions or national provisions of recognition of foreign provisional or protective measures.7 If it is unclear whether jurisdiction was based on European law or national law and the foreign decision is not clearly based on the heads of jurisdiction of the Regulation, the other Member States asked for recognition have to assume that the foreign authority acted under national law and they have to recognise the measures if international conventions or national law so requires.8 III. Recognition without special procedure 1. Basic policy 8 According to Article 21 (1) judgments given in a Member State have to be recognised in all

other Member States without any special procedure be required (cp. also Recital 23 of the Regulation).9 This may be quite a change for some Member States which are used to require a special procedure (e.g. exequatur, delibazione) in which the foreign judgment had to be evaluated in order to decide whether it may be recognised or not. This is not allowed any more. But what does it mean in practice? Is a foreign judgment now equivalent to a domestic one? Is there already an integrated judicial area with no distinctions between foreign and domestic decisions? The answer is a negative one because Art. 22–26 provide those grounds of non-recognition and those arguments which do not qualify as such grounds. Hence, there is still a distinction between foreign and domestic judgments. This has the effect that foreign judgments are recognised automatically until it has been decided that they cannot be recognised. This can be demonstrated perfectly in cases of foreign divorces to be registered in local registers (infra para. 6). But also custody decrees given in a foreign Member State are recognised automatically until the parent deprived of any right of custody challenges the original custody decree and asks for non-recognition or – more often – for a change of the custody decree. A person seeking or contesting recognition has to produce the documents mentioned in Articles 37–39, 52.

6

7

8

9

284

BGH 9.2.2011, BGHZ 188, 270 = FamRZ 2011, 542 with note by Helms = IPRax 2011, 386 with comments by Pirrung at p. 351 = IPRspr. 2010 No. 274; OLG Stuttgart 5.3.2014, FamRZ 2014, 1567 = FamRB 2014, 171 with note by Streicher = IPRspr. 2014 No. 257. ECJ judgment in Purrucker I, C- 256/09, EU:C:2010:437 = FamRZ 2010, 1521 = RDIPP 47 (2011) 224 with comments by Ornella Feraci in: RDIPP 47 (2011) 107–134; ECJ judgment in Purrucker II, C-296/10, EU:C:2010:665 = NIPR 2011 No. 2 = NJ 2011 No. 499 with note de Boer; BGH 9 February 2011, BGHZ 188, 270 = FamRZ 2011, 542 with note Helms = IPRax 2011, 386 with comments by Pirrung at p. 351 (case Purrucker); OLG München 22 January 2015, FamRZ 2015, 777 = IPRax 2016, 379 with comments by Siehr at p. 344; Child and Family Agency v. CJ and CS, [2015] 2 Irish L.R.M. 412 (C.A.); OGH 15 May 2012, ÖJZ 2012, 1008 = EvBl. 2012/146. BGH 9.2.2011, supra n. 6; OLG Stuttgart 5 March 2014, FamRZ 2014, 1567 = IPRspr. 2014 No. 257; Hoge Raad 4 October 2013, no. 12/04357, NIPR 2013, No. 311 at p. 512. Gonzalo in: La reforma de Bruselas II: Aspectos prácticos sobre su aplicación en el marco del reconocimiento y la ejecución (Ruiz 2004) p. 481 et seq.

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2. Up-dating civil-status records Many Member States have civil-status records under their national regime and under the 9 international regime of the CIEC (Commission International de l’Etat Civil). According to these regimes, marriages, births, divorces, recognitions of children, and adoptions have to be registered and up-dated if there is any change (e.g. divorce of a couple registered, annulment of a parent-child relation). Art. 21 (2) takes care of these situations. If a marriage has been finally terminated or separated by divorce, separation or annulment in a foreign Member State and a civil-status record has to be up-dated in another Member State, no special procedure is necessary for such an up-dating. If there still lies an appeal in the country of origin, the record office has to postpone the up-dating until the decision has become final. Hence, local civil status records can only be updated if the status of a person has been changed abroad by a final judgment. 3. Meaning of Recognition Recognition is the extraterritorial extension of the effects of a foreign judgment to the 10 domestic legal system (Erstreckung der Wirkungen or Wirkungserstreckung) and not only recognition with the same effects of a local judgment (Gleichstellung der Wirkungen or Wirkungsgleichstellung).10 This extension (within the object of recognition, i.e. divorce or parental responsibility) may be questioned by the aggrieved party and may be challenged by raising grounds of non-recognition. If the foreign decision has to be enforced, the interested party has to apply for a declaration of enforceability. IV. Decision on the recognition or non-recognition 1. Need for a decision on recognition As an exequatur decision is not necessary any more, there is no guarantee whatsoever that 11 the question whether a foreign decision will be recognised or not will uniformly be answered by every public office or private enterprise. Many decisions on recognition or non-recognition will be rendered incidentally (infra para. 15) and therefore may not become binding as res iudicata for everybody. Art. 21 (3) takes care of this need for a separate and final decision on recognition or non-recognition and provides that every Member State may introduce special proceedings for the application for a separate decision that a judgment of a Member State will be recognised or not in another Member State11 and should be binding for everybody (not only for the parties to the court proceedings) as res iudicata.12 10

11

12

LG Krems an der Donau 17 May 2011, EFSlg. 48 (2012) 452 (No. 132.098); Hausmann, Art. 21 at J 52; Rauscher in: Rauscher, Art. 21 notes 13 and 14; Weller in: Althammer, Art. 21 notes 3 and 4. Therefore the Regulation does not exclude a national procedure which, like an “exequatur” or a “delibazione”, makes a declaration, binding everybody as res iudicata, that a foreign decision is recognised or not recognised. Spellenberg, ZZP Int. 6 (2001) 131 (for German law); Different Helms, FamRZ 2001, 261, 262 (also with respect to German law). Frank in: Gebauer/Wiedmann, chapter 29 note 65; Geimer, IZPR p. 1164 et seq.; Paraschas in: Geimer/ Schütze, Internationaler Rechtsverkehr, vol. II, Art. 21 note 57 (at No. 545 p. 417); Rauscher in: Rauscher, Art. 21 note 33; different, i.e., effect only inter partes: Hausmann, Art. 21 at J 65; Hüßtege in: Thomas/ Putzo, Art. 21 note 7.

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12 Especially in cases of divorce there is such a need for a declaration of recognition. With

respect to foreign decisions on parental responsibility the application for a declaration of enforceability under Articles 28–36 may suffice and reduce the need for a declaration that the foreign decision has to be recognised. Nevertheless both declarations have to be distinguished. Even if a foreign decision on parental responsibility need not be enforced in another Member State, either parent may be interested to apply for a declaration of recognition or non-recognition. This is especially true if public support is awarded to a parent only if that person exercises parental responsibility. If such a declaration on the recognition or nonrecognition is applied for, such a procedure is without prejudice to the enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child under Section 4 of Chapter III (Articles 40–45). 13 “Any interested party” may apply for a decision that the foreign judgment be or not be

recognised. There is no limitation given with respect to this interest. Therefore the provision has to be construed liberally. Every member of the family, authorities for the public interest (e.g. prosecutors, registrars) may ask for a declaratory judgment.13 2. Procedure a) Reference to Articles 28–36 14 According to Article 21 (3) § 1 the procedure is governed by Section 2 of Chapter III, i.e. by

Articles 28–36. Without going into details of these Articles, this reference means that those courts are competent which have been notified by each Member State to the Commission pursuant to Article 68 (Article 29 (1)). Local jurisdiction of these courts is – different from Article 29 (2) – not fixed by the Regulation itself but is determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought (Article 21 (3) § 2). Also procedure itself, the decision and the appeal against the decision are governed by the Articles 30–34. The necessary documents to be produced by the party seeking recognition or contesting it are mentioned in Articles 37–39, 52. b) Stay of proceedings 15 The court in which a declaration is sought may stay proceedings according to Article 27 if an

ordinary appeal against the judgment has been lodged in the Member State where the judgment has been given. Another problem is whether the court of a Member State may also stay proceedings if another court of the same Member State is seized of the same case and has to decide – even if only incidentally (infra para. 15) – about the recognition of the foreign judgment. This question has to be decided by every Member State under national law of civil procedure 3. Decision 16 Whether a decision of a Member State may be recognised in another Member State or

cannot be recognised has to be determined according to Articles 22–26. This is true for any proceedings be it the declaration under Article 21(3), an incidental decision according to Article 21 (4) or any other proceedings of enforcement (cp. Article 31 (2)). 13

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BGH 28 April 2011, FamRZ 2011, 959 with comments by Schulz at p. 1046 = IPRspr. 2011 No. 275; Helms, FamRZ 2001, 261; BGH 25 July 2012, FamRZ 2012, 1561; Mosconi, Riv.dir.proc. 56 (2001) 396.

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Also national law governs the question whether the declaratory decision on recognition or 17 non-recognition is binding and res iudicata for all other courts and offices of the same jurisdiction (supra note 11). 4. Appeal The decision on the application for a declaration of recognition or non-recognition of a 18 foreign judgment may be appealed against by either party. For such an appeal Articles 33–35 apply. V. Incidental recognition or non-recognition Article 21 (4) is stating a caveat. As no special recognition procedure is permitted (supra 19 para. 5) the question whether a judgment of a Member State must be recognised, has to be decided by every court in which the validity of the foreign judgment is raised. This problem may be raised in execution proceedings, in declaration proceedings under Article 21 (3) or in any other proceedings. Article 21 (4) provides that recognition may also be determined as an incidental question in any court proceedings initiated in a Member State.14 It is up to the procedure rules of every Member State to decide whether a court faced with the 20 incidental question of recognition should stay proceedings until the application for a declaratory judgment applied for under Article 21 (3) has been decided. Article 22: Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought; (b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally; (c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or (d) if it is irreconcilable with an earlier judgment given in another Member State or in a nonMember State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Bibliography Ancel/Muir Watt, La désunion européenne: le Règlement dit “Bruxelles II”, RCDIP 90 (2001), 403, 432 14

Andrae/Heidrich, Anerkennung ausländischer Entscheidungen in Ehe- und Lebenspartnerschaftssachen, FPR 2004, 292

See, e.g., BGH 11 February 2009, FamRZ 2009, 681 = IPRspr. 2009 No. 67.

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Article 22 Arenas García, Nota (al Reglamento no. 1347/2000), AEDIPr. 3 (2003), 427 Baratta, Il regolamento comunitario sulla giurisdizione e sul riconoscimento di decisioni in materia matrimoniale e di potestà dei genitori sui figli, Giust. civ., 2002 II, 455 Boele-Woelki, Brüssel II: Die Verordnung über die Zuständigkeit und die Anerkennung von Entscheidungen in Ehesachen, ZfRV 42 (2001), 121 de Boer, Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation, NILR 49 (2002), 307 Boele-Woelki/Braat/Sumner (eds.), European Family Law in Action, vol.1: Grounds for Divorce (Antwerpen 2003), p. 78 Bonomi, Il Regolamento comunitario sulla competenza e sul riconoscimento in materia matrimoniale e di potestà dei genitori, Riv.dr.int. 84 (2001), 298, 337 Borrás, Le Règlement 1347/2000 sur la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs, Petites affiches 2002, no. 248, 12 Calco Caravaca/Carrascosa Gonzales, Derecho internacional privado vol. 2 (2d ed. Granada 2006) p. 256 et seq. Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (Tübingen 2003) Dutoit/Arn/Sfondylia/Taminelli Bischof (eds.), Le divorce en droit comparé, vol 1: Europe (Genève 2000), p. 162 Foulchiron, “Bruxelles IIbis: le nouveau droit judiciaire européen du divorce et de la responsabilité parentale”, Dr.& Patr. 2005 issue 136, 34, 41 Frank in: Gebauer/Wiedmann (eds.), Zivilrecht unter europäischem Einfluss (Stuttgart 2005), p. 1185 Frick, Ordre public und Parteiautonomie. Der Verzicht auf das Eingreifen des ordre public, dargestellt anhand des deutschen Internationalen Familienund Erbrechts (Hamburg 2005), pp. 97 et seq. Gaudemet-Tallon, Le Règlement n° 1347/2000 du Conseil du 29 mai 2000: “Compétence, reconnaissance et exécution des décisions en matière matrimonial et en matière de responsabilité parentale des enfants communs”, Clunet 128 (2001) 382, 405

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Brussels IIbis Regulation Gössl, “Anerkennung” ausländischer Ehescheidungen und der EuGH – Lost in Translation?!, StAZ 2016, 232 Gruber, Die neue “europäische Rechtshängigkeit” bei Scheidungsverfahren, FamRZ 2000, 1128 Hajnczyk, Die Zuständigkeit für Entscheidungen in Ehesachen und in anderen Familiensachen aus Anlass von Ehesachen sowie deren Anerkennung und Vollstreckung in der EG und in der Schweiz (Frankfurt/Main 2003), p. 138 Hamilton/Perry (eds.), Family Law in Europe (2d ed. London 2002), p. 241 Hau, Internationales Eheverfahrensrecht in der Europäischen Union, FamRZ 1999, 484 Hau, Das System der Internationalen Entscheidungszuständigkeit im europäischen Eheverfahrensrecht, FamRZ 2000, p. 1333 Helms, Die Anerkennung ausländischer Entscheidungen im Europäischen Eheverfahrensrecht, FamRZ 2001, 257 Helms, Anwendbarkeit der Rom III-VO auf Privatscheidungen?, FamRZ 2016, 1134 Hohloch, Internationales Verfahrensrecht in Eheund Familiensachen, FF 2001, 45, 50 Jänterä-Jareborg, Marriage Dissolution in an Integrated Europe: The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention), Yb.PIL 1 (1999) 1 Jeppesen-de Boer, Administratieve echtscheiding in Denemarken: Tijdschrift voor Familie- en Jeugdrecht (FJR) 2005, 231 Ch. Kohler, Libre circulation du divorce? Observations sur le Règlement communautaire concernant les procédures en matière matrimoniale, in: Estudos em Homenagem à Professora Doutora Isabel de Magalhães Collaço, vol. 1, (Coimbra 2002), p. 231 Mosconi, Giurisdizione e riconoscimento delle decisioni in materia matrimoniale secondo il Regolamento comunitario del 29 maggio 2000, Riv. dir. proc. 56 (2001), p. 376, 392 Mostermans, De wederzijdse erkenning van echtscheidingen binnen de Europese Unie, NIPR 2002, 263 Otten, Afstamming tussen wal en schip. Het niet erkennen van polygamie en de gevolgen voor de status van kinderen bezien vanuit praktisch perspectief, in: Rutten/Saarloos (eds.), Van afstamming

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Chapter III: Recognition and Enforcement naar nationaliteit. Opstellen G.R. de Groot (Deventer 2013), 89 Poillot Peruzzetto, The Exception of Public Policy in Family Law within the European Legal System, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (Antwerpen 2007), p. 279 Rauscher, Wie ordnungsgemäß muß die Zustellung für Brüssel I und Brüssel II sein? in: FS für Kostas E. Beys, vol. 2, (Athen 2003), p. 1285 Rauscher, Europäisches Zivilprozessrecht Bd. 1, (2 ed. Köln 2006) Rodríguez Pineau, El nuevo Reglamento comunitario sobre litigios matrimoniales y responsabilidad parental, La Ley vol. 1 (2004), D 25, 1721 Schack, Das neue Internationale Eheverfahrensrecht in Europa, RabelsZ 65 (2001), 615 Shannon/Kennedy, Jurisdiction and Recognition and Enforcement Issues in Proceedings Concerning Parental Responsibility under the Brussels II Convention, IFL 2000, 111 Siehr, Internationales Privatrecht (Heidelberg 2001), p. 491 Spellenberg, Der Anwendungsbereich der EheGVO (“Brüssel II”) in Statussachen, in: Festschrift Ekkehard Schumann (Tübingen 2001), p. 423

Spellenberg, Anerkennung eherechtlicher Entscheidungen nach der EheGVO, ZZP Int. 6 (2001), 109 Spellenberg, Die Europäische Verordnung über die gerichtliche Zuständigkeit und Anerkennung von Entscheidungen in Ehesachen (VO EG Nr. 1347/ 2000), in: Sánchez Lorenzo/Moya Escudero (eds.), La cooperación judicial en materia civil y la unificación del derecho privado en Europa (Madrid 2003), p. 85 Vlas, Nieuw internationaal scheidingsprocesrecht: de Verordening “Brussel II”, WPNR 2001, 440 Vogel, Internationales Familienrecht – Änderungen und Auswirkungen durch die neue EU-Verordnung, MDR 2000, 1045 R. Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel II-Verordnung, IPRax 2001, 73 Watté/Boularbah, Le règlement communautaire en matière matrimoniale et de responsabilité parentale (Règlement dit “Bruxelles II”), Rev.trim.dr.fam. 2000, 539, 583 Wautelet/Collienne, Règlement (CE) n° 2201/2003 du Conseil du 27 novembre 2003 – jurisprudence commentèe, in: van Drooghenbroeck (ed), Droit judiciaire européen et international (Bruxelles 2012), p. 363.

Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Scope of application 1. Subject matter: marriage a) Exclusion of homosexual marriages . . . 2 b) Exclusion of certain religious or private terminations of marriage? . . . . . . . . . . . . . . 3 c) Exclusion of “negative” decisions? . . . . . 4 d) Exclusion of declaratory judgments? . . 5 e) Exclusion of collateral matters . . . . . . . . . 6 2. Relation to other instruments a) Secular instruments . . . . . . . . . . . . . . . . . . . . . 7 b) Treaties with the Holy See . . . . . . . . . . . . . . 8 3. Transitional provisions . . . . . . . . . . . . . . . . . 9 Violation of public policy: Article 22 (a) 1. Manifest violation . . . . . . . . . . . . . . . . . . . . . . . 10 2. Examples of potential violations a) Divorce of religious marriage . . . . . . . . . . 13 b) Divorce by administrative agencies . . . . 14 c) Divorce by consent . . . . . . . . . . . . . . . . . . . . . . 15 d) Unilateral divorce because of separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

e) Divorce and time limits . . . . . . . . . . . . . . . . . 17 f) Divorce because of exceptional grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 g) Legal separation . . . . . . . . . . . . . . . . . . . . . . . . . . 20 h) Marriage annulment . . . . . . . . . . . . . . . . . . . . 21 i) Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 3. Jurisdiction of court of origin . . . . . . . . . . 25 4. Difference in applicable law . . . . . . . . . . . . 26 5. Non-review as to substance . . . . . . . . . . . . 27 6. Disclaimer of public policy . . . . . . . . . . . . . 28 Incorrect or missing service: Article 22 (b) 1. Fair hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 2. Judgment in default of appearance . . . . 30 3. No sufficient service of documents a) Initiating documents . . . . . . . . . . . . . . . . . . . . 31 b) Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 c) Sufficient time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 d) Arrangement for defence . . . . . . . . . . . . . . . 38 4. No acceptance of judgment . . . . . . . . . . . . . 39 Irreconcilability with local judgment: Article 22 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

I. II.

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V.

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Irreconcilability with earlier foreign judgment: Article 22 (d) . . . . . . . . . . . . . . . . . . . 42

Brussels IIbis Regulation VII. Effect of recognition and non-recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

I. Ratio legis 1 Three basic principles apply for the recognition of judgments given in another Member

State: (1) There are different grounds for non-recognition for judgments relating to the dissolution or separation of marriages (Article 22) and relating to parental responsibility (Article 23). (2) Judgments of other Member States have to be recognised unless grounds for non-recognition are given. There is a presumption of recognition and the party pleading for non-recognition has the burden to prove that a ground of non-recognition is given. (3) These grounds for non-recognition apply whether the foreign judgment has to be recognised in normal proceedings, as an incidental question (supra Article 21 note 19 and 20) or in proceedings for a declaration of recognition or non-recognition (supra Article 21 para. 11 et seq.). Finality of the foreign judgment is not required for recognition or – in other words – a foreign judgment is recognized even if it is not final and can still be appealed. II. Scope of application 1. Subject matter: marriage a) Exclusion of homosexual marriages 2 The Regulation is restricted to marriages of heterosexual partners (supra Article 1 note 20 et

seq. (Pintens)) and does not extend to homosexual marriages as allowed under, e.g., Belgian, Dutch or Spanish law or to marital partnerships.1 There is no indication whatsoever that homosexual marriages are covered by the Regulation. Therefore also “divorce” of partnerships and of homosexual marriages by state authorities is excluded.2 The Commission is still working on a separate instrument concerning these and other types of modern family unions. Whether such homosexual marriages and their dissolution may be recognised is still to be decided under the national rules of conflict of laws. States with homosexual marriages or homosexual partnerships may apply the Regulation mutatis mutandis, but they cannot oblige the other Member States to recognise the dissolution of homosexual marriages or partnerships under the Regulation. b) Exclusion of certain religious or private terminations of marriage?

3 Article 22 only applies to dissolutions and separation of marriages by court decision or by

decisions of other public authorities (cp. Article 3 (1)). These authorities may also be religious courts or authorities under two conditions: (1) these religious authorities (courts, Mufti in Western Thrace/Greece) must have been vested with jurisdiction by state action 1

2

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Andrae/Heidrich, FPR 2004, 292; Arnold in: Althammer, Art. 1 note 6; Dornblüth 41–43; Jänterä-Jareborg 18; Mostermans, NIPR 2002, 266–267; Rauscher in: Rauscher, Art. 1 note 6 et seq.; Schack, RabelsZ 65 (2001) 620; Vlas, WPNR 2001, 444; different Boele-Woelki, ZfRV 42 (2001) 127; Hausmann at A note 27 for homosexual marriages only; Hüßtege in: Thomas/Putzo, EuEheVO Art. 1 note 5, for homosexual marriages only; uncertain Spellenberg, ZZP Int. 6 (2001) pp. 120–121. According to Watté/Boularbah, Rev.trim.dr.fam. 2000, 545 such “divorces” are covered by the Regulation.

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(either by statute or treaty see infra para. 8) and (2) the religious decisions must be valid under state law (either ipso facto or by state confirmation, supra Article 21 note 4). The Brussels IIbis Regulation does not deal, however, with dissolutions of marriages by private acts without any court interference.3 Therefore dissolutions according to Jewish law by delivery of a ghet or according to Islamic law by repudiation of the wife (talaq) are not covered by the Regulation.4 If, however, a Member State provides that a marriage may be terminated by a document formally drawn up with a notary public or registered as authentic instrument, such an instrument has also to be recognised under Article 46. The same Article should be applied to those private divorces that become valid as soon as the dissolution of marriage has been registered with the civil register of the Member State where the divorce took place, and thereby was confirmed by state authorities.5 c) Exclusion of “negative” decisions? It has been suggested that the term “judgment” covers only “positive” decisions on matri- 4 monial matters and does not cover “negative” decisions which do not grant a divorce, legal separation or annulment of marriage.6 This explanation for the Brussels II Regulation of 2000 which does not find convincing support in the text of the present Regulation, should not be accepted for the Brussels IIbis Regulation. At the time the Regulation II of 2000 was conceived, there may have been major differences between the Member States on divorce and separation. They do not exist anymore today. Also under this perspective under Brussels IIbis Regulation a “negative” decision has to be qualified as a judgment on matrimonial matters and it must be recognised within the European Union.7 On the same facts there can be no second court proceedings. Once the annulment of marriage has been declined in one Member State, there can only be a divorce in all Member States and no second proceedings for marriage annulment. If a divorce has been declined in a Member State, another divorce suit is possible with respect to facts which have arisen later.8 d) Exclusion of declaratory judgments? It has been discussed whether declaratory judgments on the existence and non-existence of a 5 3

4

5 6

7

8

Arnold in: Althammer Art. 1 note 10; Helms, FamRZ 2001, 260; de Lima Pinheiro 314; Rauscher in: Rauscher Art. 1 note 11 and 12; Spellenberg (fn. 1) pp. 121–122. OGH 13 October 2011, EF-Z 2012, 134 with note by Nademleinsky, in respect to an Iranian talaq originating in a State not being a Member State of the EU. The ECJ declined jurisdiction for a preliminary ruling on the recognition of a “private divorce” (Syrian divorce of Muslims by “talq”): ECJ judgment in Sahyouni, C-281/15. EU:C:2016:343 = FamRZ 2016 1137 with critical remarks by Helms at p. 1134 and by Gössl, StAZ 2016, 232. Dornblüth pp. 58–59. Report Borrás, Petites affiches 2002 no. 60; Borrás, Règlement 14 et seq.; Arenas García, AEDIPr. 3 (2003), p. 434; Boele-Woelki p. 127; de Boer, NILR 49 (2002), 325; Bonomi, Riv.dr.int. 84 (2001) 342; Dornblüth pp. 53–56; Frank in: Gebauer/Wiedmann (eds.), Art. 22 note 69; Hajnczyk p. 138; Helms 258; Rodríguez Pineau 1728; Schack 627; Shannon/Kennedy, IFL 2000 115; Vlas 446; Wagner, IPRax 2001, 76; Watté/ Boularbah p. 585. Also Ancel/Muir Watt, RCDIP 90 (2001) 26; Calvo Caravaca/Carrascosa Gonzales p. 256; de Lima Pinheiro 315; Gaudemet-Tallon, Clunet 128 (2001) 60; Kohler 238–240, Rauscher in: Rauscher Art. 22 note 16: Spellenberg, Anerkennung 124–125, are also not convinced that the Report is correct in this respect. LG Krems an der Donau 17 May 2011, EFSlg 48(2012) 452 (No. 132.697 et seq.).

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marriage are covered by the Brussels IIbis Regulation. Within the European Union – different from the world-wide conceived Hague Convention of 1970 on the Recognition of Divorces and Legal Separations9 – there is hardly any reason to limit the Regulation in this respect.10 Member States have to recognise foreign judgments on marriage annulment on grounds completely foreign to the forum state,11 and it would be strange if they had not to recognise that in most Member States marriage annulment is restricted to very few grounds and must be initiated within certain time limits. This is also true for non-existing marriages in countries still requiring a mandatory civil marriage for ceremonies within their territory. This may lead to a necessary liberalization of formalities of marriages. e) Exclusion of collateral matters 6 Most divorce proceedings deal with the dissolution of marriage and several collateral mat-

ters as, e.g., maintenance, matrimonial property and custody of common children. Article 22 only deals with recognition of the termination of marriage.12 Whether the decisions relating to collateral matters will be recognised, has to be decided according to other Regulations (e.g. Regulation for maintenance, Article 23 Brussels IIbis Regulation for custody) and conventions or national law. The only money judgment to be recognised and enforced under Article 22 is the decision as to costs and expenses of the proceedings relating to matrimonial matters. 2. Relation to other instruments a) Secular instruments 7 If bilateral or multilateral instruments apply between Member States the Brussels IIbis

Regulation supersedes or takes precedence over those instruments according to Articles 59 and 60. Between Finland and Sweden the Nordic Convention of 6 February 1931 comprising international private law provisions on marriage, adoption and guardianship applies (cp. Annex VI).13 With respect to the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages, drafted by the International Commission on Civil Status and ratified by Austria and the Netherlands, the Brussels IIbis Regulation takes precedence between these States (Article 60 (b)). The same is true with regard to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations, valid in thirteen Member States. Also here the Brussels IIbis Regulation supersedes the Hague Convention (Article 60 (c)). b) Treaties with the Holy See 8 Italy, Portugal and Spain are bound by treaties with the Holy See. The Brussels IIbis Regu9

10

11 12

13

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Recueil des Conventions, Collection of Conventions (1951–2009) No. 18, and Report by Bellet/Goldman, Actes et documents de la onzième session, vol. II, The Hague 1970, 211 and 213. Dornblüth pp. 60–62; Hau, FamRZ 1999, 485; Hau, FamRZ 2000, 1333; Gruber, FamRZ 2000, 1130; Schack 620; Vogel, MDR 2000, 1046; contra Helms 259; Spellenberg, Anerkennung 125–126; Spellenberg, in: Festschrift Ekkehard Schumann 99. Cp. the facts of the Pellegrini affair, infra note 22. Even an isolated Swedish divorce decree without any decision on collateral matters has to be recognised according to Article 22: Cour d’appel Luxembourg 23 octobre 2003, Pasicrisie lux. 2005, 9 with annotation Wautelet/Collienne in: van Drooghenbroeck, Droit judiciaire 456. Jänterä-Jareborg 29–31.

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lation applies without prejudice to these treaties (Article 63). According to these treaties ecclesiastical courts are competent for annulment of religious marriages. The Regulation does not touch these competences. As soon as the annulment decrees of ecclesiastical courts become valid in Italy, Portugal and Spain (either by secular confirmation or simply by vesting jurisdiction in them by state action in form of statutes or treaties), they have also to be recognised in the other Member States.14 3. Transitional provisions The Brussels IIbis Regulation and its Article 22 apply principally to proceedings instituted 9 after 1 March 2005 and to judgments given after that date: Article 64 (1). For proceedings instituted under the Brussels II Regulation No. 1337/2000 (1 March 2001 until 28 February 2005) and for judgments given thereafter, Article 64 (2) and (3) provides guidance. Article 64 (4) deals with proceedings instituted before 1 March 2001. III. Violation of public policy: Article 22 (a) 1. Manifest violation According to Article 22 (a) recognition may only be declined if the foreign judgment is 10 “manifestly” contrary to the public policy of the Member State in which recognition is sought. This term “manifestly” is well known as a certain qualification of public policy. Public policy as a ground for non-recognition should be invoked – as in other European instruments15 – cautiously and restrictively as an “ordre public attenué”16 paying also regard to the “Inlandsbeziehung”17 (connection with the forum State, proximité) of the case. The closer a case is connected with the forum State, the more likely it is that a violation of local public policy may be assumed. Or, the other way around: If the case has no or no close connection with the forum State, the foreign decision hardly touches local public policy of the forum State. As there is no review as to substance (Article 26) only the result of a foreign decision may be 11 evaluated and qualified as manifestly incompatible with the public policy of the recognising Member State. Although not mentioned in Article 22 it may even be argued that between Member States of 12 the European Union the ground “public policy” for non-recognition should be applied extremely cautiously as a kind of “ordre public Européen”.18 Such a restrictive practice 14 15

16

17

18

Calco Caravaca/Carrascosa Gonzales p. 257; de Lima Pinheiro 315; Spellenberg, Anerkennung 122–123. Cp. Hoffmann v. Krieg, (C-145/86) (1988), ECR, 645, 668; Renault v. Maxicar, (C-38/98) (2000) ECR I 2973, 3021. As to this notion originating in French literature cp. Batiffol/Lagarde, Droit international privé, vol. I, 8th ed. Paris 1993, no.361, and transferred to European law in Article 34 (1) Brussels I Regulation (Article 27 (1) of the Brussels Convention); Gaudemet-Tallon, (fn. 6) p. 74. As to this term originating in German literature cp., e.g., Siehr p. 491, and transferred to European law in Article 34 (1) Brussels I Regulation (Article 27 (1) Brussels Convention). Whether there is such a “European public policy” is still uncertain, cp. Baratta, Giust.civ., 2002 II, 465; Siehr, pp. 488 et seq.

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may be based on the general objective of the Regulation of “creating an area of freedom, security and justice” (cp. Recital 1 of the Regulation) and of non-discrimination (Article 12 EC). Therefore it is not anymore admissible to distinguish between cases in which nationals of the forum state are involved and those instances in which only foreign EU citizens are concerned. EU citizens should be treated alike under the “ordre public Européen” as soon as they are domiciled in the forum state. Nationality does not matter. A distinction can only be drawn as to the territorial “Inlandsbeziehung” of the parties. If they have their domicile or habitual residence in the forum state, this connection is sufficient for invoking public policy. 2. Examples of potential violations a) Divorce of religious marriage 13 In all Member States marriages may be dissolved by divorce. This is also true for Malta

where the divorce of marriages has been introduced in 2011 by Articles 66A–66N of the Civil Code of Malta.19 b) Divorce by administrative agencies 14 In Denmark, e.g., spouses may be divorced by an administrative agency.20 Such divorces may

be recognised under national law of recognition of foreign divorces because Denmark does not take part in the Brussels IIbis Regulation (cp. Recital 31). Other Member States, however, may also introduce an “administrative divorce”21 and then the question has to be answered whether such a divorce has to be recognised in the other Member States. A positive answer has to be given because the Brussels IIbis Regulation does not require that a marriage has to be dissolved by a court in order to be recognised abroad. Article 2 (4) and (1) defines that a judgment means a divorce judgment, decree, order or decision pronounced by a court or any other authority having jurisdiction in divorce cases according to the national law of a Member State. Therefore the recognition of a foreign divorce cannot be declined because it has been given by an administrative authority. c) Divorce by consent 15 In many Member States the spouses unanimously may ask for a divorce without being

obliged to state or prove any specific ground for divorce (cp., e.g., Article 1: 154 Dutch Burgerlijk Wetboek, Article 230 French Code civil, §§ 1564, 1566 BGB). Such a divorce has to be recognised also in those Member States which do not yet know a divorce by consent. d) Unilateral divorce because of separation 16 In some Member States divorce may be unilaterally obtained after a short waiting period of

six month or after having lived separately for two years (cp., e.g., § 3 Finish Lag no. 411 of 16 April 1987 om ändring av äktenskapslagen of 1929 = § 25 Abs. 2 EheG).22 Member States 19

20

21

22

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Pietsch, Malta (as of 17 September 2105), in: Bergmann/Ferid/Henrich (eds.), Internationales Ehe- und Familienrecht, 6th ed. Frankfurt am Main 2004, vol. XI, p. 64 et seq. Lovbekendtgørelse of 7.10.2014 nr. 1096 om ægteskabs indgåelse og opløsning: 5 Karnovs Lovsamling no. 23.2.1 (2015). See Trib. Thessaloniki 8090/2011, with note by Panopoulos, Rev.hell. 65 (2012) 612 (Russian agency); as to Dutch plans cp. Jeppesen-de Boer 321. Cp. to the Finish law Boele-Woelki/Braat/Sumner p. 78; Dutoit/Arn/Sfondylia/Taminelli Bischof p. 162; Hamilton/Perry p. 241.

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without such grounds for divorce have to recognise this divorce because it is a divorce because of a presumed breakdown of marriage, i.e. of a ground recognised as a ground of divorce in all Member States. e) Divorce and time limits Some Member States provide that certain marriages cannot be dissolved by divorce before 17 the expiration of a waiting period (cp., e.g., Article 3 (2) (b) § 2 Italian Divorce Law of 1970). Such Member States might be inclined not to recognise a foreign divorce given without the requirement of a waiting period. This is not allowed any more under Article 22 because the marriage can be dissolved by divorce also in the forum State very soon after the recognition procedure has been terminated and the local waiting period has been terminated. Also “quicky” divorces (divorzio rapido) given without any time requirements should be recognised as soon as the respondent had his or her day in court with a fair trial.23 This has been correctly decided by the Court of Appeal of Perugia.24 f) Divorce because of exceptional grounds In some Member States criminal offences punished with life imprisonment or with a term of 18 imprisonment exceeding fifteen years and certain criminal offences (incest, grievous bodily harm, murder) may be grounds for divorce (cp., e.g., Article 3 of the Italian Divorce Law of 1970). These grounds qualify in other legal systems as facts indicating a breakdown of marriage and cannot be an argument for not recognising a foreign divorce. Article 22 also applies to divorces given in a Member State according to the law of a foreign 19 country not being a Member State of the European Union or not taking part in the Brussels IIbis Regulation (Denmark). Especially in these cases Article 22 (a) may become relevant. May recognition be denied if the divorce is based on an alleged change of religion by the respondent? In such cases the recognition must be denied because of public policy unless the divorce can also be justified because of breakdown of marriage. g) Legal separation Legal separations do not dissolve marriages. They may only terminate certain effects of 20 marriage (e.g., cohabitation, maintenance). The decisions on legal separation given in a Member State have to be recognised by the other Member States. The other Member States are, however, not precluded to open divorce proceedings if they have jurisdiction under Article 3. h) Marriage annulment A marriage may be annulled if it is voidable ab initio because certain mandatory require- 21 ments of a valid marriage were not given. There is no problem with the well-recognised requirements of marriage as, e.g., unmarried status, no close family relationship, full capacity. But what about certain uncommon grounds as differing religion, misunderstanding of a civil marriage,25 mistake as to the other person or his or her physical qualities (aids infection) as well as mental ones (schizophrenia)? Unless very basic principles of the recognising 23 24

25

Helms 263. C.A. di Perugia 10 March 2011, RDIPP 48 (2012) 153, by declining to accept a violation of the Italian public policy by a Spanish divorce decree given without any requirement of previous legal separation. Cp., e.g., H.v.H., Greens Weekly Digest 2005, 615 (Scotland, Inner House, Extra Division): Muslims did

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Member State have been violated (e.g. secular marriage with no importance whatsoever with respect to the spouses’ religious affiliation), the foreign annulment decree given in another Member State has to be recognised. 22 In the Italian case Pellegrini 26 years after the marriage the Roman Rota, in a summary

procedure without hearing Ms. Pellegrini, declared the religious marriage of the couple Gigliozzi-Pellegrini null and void on the ground of consanguinity. This was recognized in Italy by “delibazione” although the spouses had been legally separated by a secular Italian court before the ecclesiastical judgment was formally recognised by Italian courts. Ms. Pellegrini asked the European Court of Human Rights (ECHR) to give a judgment against Italy because Italian courts had recognised the ecclesiastical judgment without making sure that Ms. Pellegini’s right for a fair trial and hearing had not been violated. The ECHR held that Article 6 § 1 of the European Convention of Human Rights and Fundamental Freedoms had been violated and gave judgment for Ms. Pellegrini.26 The same ground of non-recognition is provided by Article 22 (b). But what about the late marriage annulment (26 years after marriage) and the conflict with a decision on legal separation? Does this violate public policy manifestly? In many countries the application for marriage annulment has to be made very soon after the marriage obstacle has been discovered. The late annulment does not violate public policy but the recognition of the marriage annulment does not invalidate former judgments on collateral matters as, e.g., maintenance. Whether the annulment is irreconcilable with another decision, has to be decided under Article 22 (c) and (d). 23 If a foreign annulment decree cannot be recognised, the non-recognising Member State

cannot recognise the foreign decision as a divorce. There is no need for such a substitution. Having divorce jurisdiction the non-recognising Member State itself may grant a divorce. i) Fraud 24 It has been suggested to qualify the fraudulent creation of a forum as a manifest violation of

public policy and therefore as a ground for non-recognition.27 There is hardly any situation where an applicant assumes the risks and burdens of a judicial fraud. But it may happen. Let me take the famous case Bauffremont as an example.28 A Maltese lady not being able to get a divorce in Malta before 2011, applied for nationality in another Member State, is quickly naturalized and now pretends to the local judge that she had her habitual residence in the forum state for more than six months (cp. Article 3 (1) (a) last indent). Her husband in Malta is served unknowing that he is absent for a long time and cannot open his mail. In such or similar rare cases the recognition of a foreign judgment may be declined because of manifest violation of public policy. If, however, there are means of redress in the state of origin, public policy of the recognising Member State is not manifestly violated.29

26

27 28

29

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not understand their civil marriage and lived separately as if they were single and continued to do so until the promised, but not undertaken religious marriage. Pellegrini v. Italy, (no. 30882/96) (2001), ECHR 2001-VIII 369. But foreign annulment decrees post mortem have to be recognised under the rules of Brussels IIbis Regulation: see ECJ judgment in Mikołajczyk, C-294/15, EU:C:2016:772 = NZFam 2017, 128. Calvo Caravaca/Carrascosa Gonzales,(fn. 6) p. 259; Gaudemet-Tallon (fn. 6) p. 71. Cass. 18 March 1878, Recueil Sirey 1878, I, 193, and in: Ancel/Lequette (eds.), Grands arrêts de la jurisprudence française de droit international privé (3rd ed. 1998), 41. Shannon/Kennedy, (fn. 5) p. 115.

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3. Jurisdiction of court of origin According to Article 24 the jurisdiction of the court of the Member State of origin may not 25 be reviewed and, if lacking, may not be held as a violation of public policy referred to in Article 22 (a). This means that once a court or an authority is seized of divorce, separation or nullity proceedings the respondent has to fight jurisdiction in this court and cannot rely on recognition proceedings in another Member State. Lack of jurisdiction is no more a ground for non-recognition of foreign decisions relating to divorce, legal separation or marriage annulment. Whether the fraudulent creation of a forum is a ground for non-recognition has to be decided under the public policy-clause of lit. a (supra para. 24). 4. Difference in applicable law It is no violation of public policy that the courts of the recognising Member State would have 26 applied a different law which would not allow divorce, legal separation or marriage annulment on the same facts. This is expressly mentioned in Article 25. Therefore recognition of foreign divorces, legal separations or marriage annulments does not violate public policy if the recognising Member State would have applied a different law not allowing such a termination or separation of marriage or allowing it because of different grounds. 5. Non-review as to substance The authorities of the recognising Member State may look into the result of the foreign 27 decision of divorce, legal separation or marriage annulment in order to find out whether public policy has been violated but under no circumstances they may review the foreign decision as to its substance (Article 26). There is no révision au fond under European law of recognition and enforcement of foreign decisions. 6. Disclaimer of public policy The Regulation seems to imply that the authorities of the recognising Member State have to 28 decline recognition ex officio if the foreign decision violates local public policy and do not pay regard whether the respondent applies for recognition and thereby implicitly accepts the foreign decision despite a potential violation of public policy. Such an implication is not correct. It is rather up to the national law of the recognising Member State to decide under which circumstances a potential violation of public policy will not result into non-recognition because the respondent applies for recognition and accepts the foreign judgment and because of this acceptance there is no manifest violation of local public policy.30 This is different with respect to incorrect or missing service as a ground for non-recognition as mentioned in Article 22 (b). In this case European law provides that a ground for nonrecognition will not be applied if “the respondent has accepted the judgment unequivocally” (infra para. 36).

30

As to German law cp. Frick, Ordre public, p. 97 et seq.

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IV. Incorrect or missing service: Article 22 (b) 1. Fair hearing 29 Article 22 (b) wants to make sure that the respondent had his or her day in court in such a

way as to enable him or her to arrange for his or her defence. Such a protection is only necessary in default proceedings. Here the applicant has to make sure that the respondent is served properly with sufficient time for his or her defence. The similar provisions of Article 45 (1)(b) Brussels Ibis Regulation and Article 27 (2) Brussels Convention may serve as guidelines. 2. Judgment in default of appearance 30 If the respondent habitually resident in a State other than the Member State where the action

was brought does not enter an appearance, according to Article 18 (1) the court with jurisdiction should stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence or that all necessary steps have been taken to this end. If this is not done and a judgment in default of appearance has been given, there are serious doubts whether this judgment will be recognised in the other Member States. 3. No sufficient service of documents a) Initiating documents 31 National law of civil procedure decides which documents have to be served on the respon-

dent in order to start proceedings. These documents have to be served on the respondent. The applicant should ask for a certificate of service in order to prove that the respondent has been served properly. The proper service of documents which have to be served during the proceedings is no ground for non-recognition. This is also true for a service of process violating the sovereignty of the receiving Member State.31 Article 22 (b) wants to make sure that the respondent is treated fairly. State interests are not involved and are no ground for non-recognition. b) Service 32 If the respondent is living in the Member State where the proceedings have been initiated,

service of process is governed by the local rules of civil procedure. 33 Where the respondent is living in another Member State international rules of service of

process apply. All Member States except Denmark are bound by the Regulation (EC) No. 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters.32 This Regulation applies also to

31

32

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Helms 264; Rauscher, in: Festschrift für Kostas E. Beys, p. 1291; Schack 627; Spellenberg, Anerkennung 134–136. OJ 2007, L 324/79.

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matters of divorce, legal separation and marriage annulment because, different from the Brussels Ibis Regulation (Article 1 (2) (a)), these civil matters have not been excluded from the field of application. Between all Member States except Denmark service of process has exclusively to be made according to Regulation (EC) No. 1393/2007 and cannot be substituted by national rules on service of process on persons living outside the jurisdiction.33 If documents have to be served to the respondent in Denmark, the Hague Convention of 15 34 November 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters34 applies and documents have to be served according to this Convention unless the Danish national rules implementing the rules of Regulation (EC) No. 1393/ 2007 apply. If service has to be made to respondents residing in a Non-Member State the Hague Con- 35 vention of 1965 (supra para. 34) applies or other international instruments or national rules on service of documents on persons living outside the jurisdiction. Constructive notice by publication in the forum state is not sufficient. c) Sufficient time The respondent must have been served in “sufficient time”. The respondent must have been 36 given time to prepare for the appearance in court. If the respondent is living abroad, more time has to be given than in purely local proceedings because the respondent has to hire an attorney or appear in person in a foreign country. The court seized of the matrimonial matter should be liberal in respect of the time given the respondent in order to prevent the non-recognition of the judgment in the other Member States under Article 22 (b). As soon as the service has been made under the Regulation No. 1393/2007 (supra para. 33) 37 or under the Hague Convention of 1965 (supra para. 34), the time starts to runwith the date of service mentioned in the certificate of service. Similar rules apply if documents are served diplomatically. In all these cases it is not necessary that the respondent takes notice of the document served. Receipt of the properly translated documents is sufficient. d) Arrangement for defence The documents served must be precise and clear as to informthe respondent of the matter 38 raised in the court seized. The respondent must be enabled to arrange for his or her defence. Minor irregularities of service do not prevent such an arrangement and hence cannot be put forward as a ground for non-recognition. 4. No acceptance of judgment The respondent may waive the requirement of fair hearing as a ground for non-recognition 39 and accept the decision rendered without his or her appearance. This acceptance has to be

33

34

Scania Finance France SA v. Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co., (C-522/03) (2005) ECR I-8639, with respect similar problems arising under the Brussels Convention of 1968; Corte di Appello di Perugia 10 March 2011, RDIPP 48 (2012) 153, where national law of service on persons without address was used although the plaintiff knew the address of the defendant. Recueil des conventions, Collection of Conventions (1951–2009) No. 14.

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made unequivocally. A tacit acceptance is insufficient unless the special circumstances reveal that the foreign decision is expressly accepted.35 This is, e.g., the case where the respondent applies for updating the civil-status records on the basis of the foreign decision relating to divorce or marriage annulment.36 Also a new marriage of the respondent is an unequivocal acceptance of the divorce because the respondent cannot be presumed to have entered a bigamist marriage. But not appealing the judgment of first instance does not amount to “unequivocal acceptance”.37 V. Irreconcilability with local judgment: Article 22 (c) 40 Despite the rules on lis pendens (Article 19)38 it may happen that proceedings in matrimonial

matters between the same parties are brought before courts of different Member States and these courts do not know of the concurrent proceedings in the other Member State and therefore the court second seized does not stay its proceedings. The result may be that two decisions in matrimonial matters are given. In such a situation the decision given in the Member State in which recognition is sought prevails if irreconcilable with the foreign decision.39 This is true even if the local decision of the Member State of recognition has been given later than the foreign decision which is applied for recognition. The Brussels IIbis Regulation copies Article 45 (1) (c) Brussels Ibis Regulation and insofar the same principles apply. A local judgment should not be superseded by a foreign judgment whether given before or after the local decision. This can hardly be justified anymore.40 This anomaly can, however, be limited considerably. The local judgment must be given before the forum judge gets notice of the foreign decision because the forum judge has to recognize foreign judgments without any special procedure being required: Article 21 (1).41 41 Whether court decisions are irreconcilable has to be decided limited to the matrimonial

matter (divorce, legal separation. marriage annulment) without paying regard to collateral matters of parental responsibility, maintenance or matrimonial property decided by the same foreign tribunal. There is no irreconcilability if the foreign judgment comes to the same conclusion as the local court. Also legal separation is not irreconcilable with divorce.42 Divorce is, however, irreconcilable with legal separation and marriage annulment, and marriage annulment (also of ecclesiastical courts) is irreconcilable with legal separation and divorce.43 With respect to the decision on collateral matters the rules on recognition

35

36 37 38

39

40 41 42 43

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It is not sufficient that the party not served properly did not appeal the foreign divorce decree: Corte di appello di Perugia 10 March 2011, RDIPP 48 (2012) 153. Report Borrás no. 70; Wagner 78. Rauscher in: Rauscher, Art. 22 note 19. A foreign decree violating a lis pendens of the forum State must be recognized according to Article 22: incorrect Cour d’appel de Toulouse 8 février 2005, JurisDate n° 2005-267401 with critical note Wautelet/ Collienne in: van Drooghenbroeck, Droit judiciaire 456. There is, however, no contradiction between a German definitive decision of separation and an Italian not definitive decision of separation: Cass. 16 October 2009, n. 22093, RDIPP 49 (2010) 463. Ancel/Muir Watt 38; Calvo Caravaca/Carrascosa Gonzales 259; Dornblüth p. 147; Helms 265. Spellenberg, Anerkennung 140. Spellenberg, Anerkennung 142–143; Watté/Boularbah 591. As to details see Rauscher in: Rauscher, Art. 22 notes 23 et seq.

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Article 23

of those decisions have to decide whether irreconcilable foreign decisions can be recognised. This is, e.g., provided for matters of parental responsibility in Article 23 (e). VI. Irreconcilability with earlier foreign judgment: Article 22 (d) Also Article 22 (d) is a well-known ground for non-recognition of foreign judgments under 42 the Brussels Convention (Article 27 (5)) and the Brussels Ibis Regulation (Article 45 (1) (d)). Two foreign decisions given between the same parties clash and in this situation the earlier judgment prevails if it fulfils the conditions for its recognition in the Member State in which recognition is sought. With respect to decisions of a Member State Article 22 applies and with respect to decisions given in a non-Member State international instruments with this State apply and national rules on the recognition of foreign judgments. With respect to irreconcilability the same principles apply as pointed out supra at note 40. 43 Article 22 (d) does not mention whether the foreign decisions given prior to the local 44 judgment have to be final or not. Therefore national law of the recognising Member State has to decide whether a foreign judgment not being final but given earlier than a later final judgment of another State takes priority with respect to the later but final decision. Such a conflict may be avoided by stay of proceedings according to Article 27. VII. Effect of recognition and non-recognition If the foreign judgment has been recognised, it is conclusive and binding in all other Member 45 States. The marriage has been terminated by divorce, the spouses have been legally separated or the marriage has been annulled. Where the foreign judgment cannot be recognised, the legal situation has not been changed by any court decision and the courts of the Member State in which the foreign decision has not been recognised may be asked for a divorce, legal separation or marriage annulment if they have jurisdiction under Articles 3–7. Article 23: Grounds of non-recognition for judgments relating to parental responsibility A judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child; (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought; (c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given the opportunity to be heard; (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;

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(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. or (g) if the procedure laid down in Article 56 has not been complied with.

Bibliography Andrae, Anerkennung einer ausländischen Entscheidung zur elterlichen Sorge, NZFam 2016, 1011 Curry-Sumner, Rules on the recognition of parental responsibility decisions – A view from the Netherlands: NIPR 2014, 545 Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (Tübingen 2003) Espinosa Calabuig, La responsabilidad parental y el nuevo Reglamento de “Bruselas II, bis”: entre el interés del menor y la cooperación judicial interestatal, RDIPP 39 (2003) 735, 769 et seq. Foulchiron, “Bruxelles IIbis”: le nouveau droit judiciaire européen du divorce et de la responsabilité parentale, Dr.& Patr. 2005, issue 136, p. 34 Gallant, Responsabilité parentale et protection des enfants en droit international privé (Paris 2004) Helms, Die Anerkennung ausländischer Entscheidungen im Europäischen Eheverfahrensrecht, FamRZ 2001, 257 Kropholler, Europäisches Internationales Zivilverfahrensrecht ohne europäisches Kollisionsrecht – ein Torso. Das Beispiel der Kinderschutzmaßnahmen, in: Grenzüberschreitungen. Festschrift für Peter Schlosser (Tübingen 2005), p. 449 Moya Escudero, Competencia judicial y reconocimiento de decisiones en materia de responsabilidad parental: el reglamento Bruselas II, in: Sánchez Lorenzo/Moya Escudero (eds.), La cooperación judicial en material civil y la unificación del derecho privado en Europa (Madrid 2003), p. 105 Poillot Peruzzetto, The Exception of Public Policy in Family Law within the European Legal System, in: Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (Antwerpen 2007), p. 279

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Rausch, Elterliche Verantwortung – Verfahren mit Auslandsbezug vor und nach “Brüssel IIa”, FuR 2005, 53 and 116 Rauscher, Parental Responsibility Cases under the New Council Regulation “Brussels IIA”, EuLF 2005, 37 Schulz, Internationale Regelungen zum Sorge- und Umgangsrecht, FPR 2004, 299 Shannon/Kennedy, Jurisdictional and Recognition and Enforcement Issues in Proceedings Concerning Parental Responsibility under the Brussels II Convention: IFL 2000, 111 Siehr, Die Eheverordnung von 2003 und das MSA von 1961, in: Perspektiven des Familienrechts, Festschrift für Dieter Schwab (Bielefeld 2005), p 1287 Siehr, in: Münchener Kommentar zum BGB, vol.10, (6th ed. 2015) Art. 21 EuEheVO at p. 1151 et seq. Siehr, Internationales Privatrecht (Heidelberg 2001), p. 488 Strauber, A Deal is a Deal: Antenuptial Agreements Regarding the Religious Upbringing of Children should be Enforceable, Duke Law Journal 47 (1998) 971 Tenreiro, L’espace judiciaire européen en matière de droit de la famille, le nouveau règlement “Bruxelles II”, in: Les enlèvements d’enfants à travers les frontiers (Bruxelles 2004), p. 19 Völker/Steinfatt, Die Kindesanhörung als Fallstrick bei der Anwendung der Brüssel IIa-Verordnung, FPR 2005, 415 Vlas/Ibili, Echtscheiding en ouderlijke verantwoortlijkheid volgens de nieuwe EG-Verordening Brussel IIbis, WPNR 2005, 263 Watté/Boularbah, Le règlement communautaire en matière matrimoniale et de responsabilité parentale (Réglement dit “Bruxelles II”), Rev.trim.dr.fam. 2000, 539.

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III.

Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Scope of application 1. Subject matter a) Parental responsibility . . . . . . . . . . . . . . . . . . 3 b) Judgments on rights of access and return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Relation to other instruments a) Relation to the Hague Convention of 1961 on Protection of Minors . . . . . . . 5 b) Relation to the European Convention of 1980 on Custody of Children . . . . . . . 6 c) Relation to the Hague Convention of 1980 on Child Abduction . . . . . . . . . . . . 7 d) Relation to the Hague Convention of 1996 on Protection of Children . . . . . 8 e) Relation to other instruments . . . . . . . . . . 9 3. Transitional provisions . . . . . . . . . . . . . . . . . 10 Violation of public policy: Article 23 (a) 1. Manifest violation . . . . . . . . . . . . . . . . . . . . . . . 11 2. Best interest of the child (and not the parent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3. Examples of potential violations a) Custody according to fixed rules on age and sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 b) Custody according to religion of the parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 c) Return order to a non-Hague convention country . . . . . . . . . . . . . . . . . . . . . . 17

Article 23 4. Jurisdiction of court of origin . . . . . . . . . . 18 5. Difference in applicable law . . . . . . . . . . . . 19 6. Non-review as to substance . . . . . . . . . . . . 20 7. Passage of Time . . . . . . . . . . . . . . . . . . . . . . . . . . 21 8. Disclaimer of public policy . . . . . . . . . . . . . 22 IV. Lack of hearing of the child: Article 23 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 V. Incorrect or missing service: Article 23 (c) 1. Fair hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2. Judgment in default of appearance . . . . 25 3. No sufficient service of documents a) Initiating documents . . . . . . . . . . . . . . . . . . . . 26 b) Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 c) Sufficient time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 d) Arrangement for defence . . . . . . . . . . . . . . . 33 4. No acceptance of judgment . . . . . . . . . . . . . 34 VI. Lack of hearing of interested person: Article 23 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 VII. Irreconcilability with local judgment: Article 23 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 VIII. Irreconcilability with a foreign judgment: Article 23 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 IX. Compliance with Article 56: Article 23 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 X. Effect of non-recognition and recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

I. Ratio legis Foreign judgments, orders or decrees relating to parental responsibility given in another 1 Member State (except Denmark)1 have to be recognised in the other Member States unless there is a ground of non-recognition enumerated in Article 23. Also Articles 37–39 have to be followed (supra Art. 21 note 1).2 These grounds of non-recognition may be invoked as soon as the foreign decision relating to parental responsibility is claimed to be valid in another Member State, either incidentally (Article 21 (4)) or in proceedings for a declaration of recognition or non-recognition (Article 21 (3)). Article 23 repeats, to a large extent, what has already been provided by Article 15 (2) of the Brussels II Regulation 1347/2000. Even if judgments relating to parental responsibility are recognised, they may be changed as 2 soon as the judgment has to be adjusted to changed circumstances. Therefore it has to be kept in mind that judgments relating to parental responsibility may be final insofar as there 1 2

Supra Art. 21 note 4; OGH 19 December 2012, iFamZ 2013, 107. The annexes mentioned in Article 39 can be reviewed according to their correctness: OGH 20 March 2013, iFamZ 2013, 165 with note by Fucik.

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is no regular remedy any more. But these judgments do not work res iudicata. They have to be changed as soon they have to be adjusted to new circumstances in the best interest of the child (infra note 14). II. Scope of application 1. Subject matter a) Parental responsibility 3 Article 23 covers all judgments relating to parental responsibility pronounced by a court or

authority of a Member State whatever the judgment may be called, including a decree, order or decision (Article 2 (4)). The term “parental responsibility” means all rights and duties to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term includes rights of custody and rights of access (Article 2 (7)). b) Judgments on rights of access and return 4 Judgments on the right of access (Article 41) and on the return of a child (Article 42) have to

be recognised without any possibility of opposing its recognition if they have been certified in the Member State of origin in accordance with the provisions in Article 41 (2) or 42 (2).3 This, however, does not prevent the holder of parental responsibility from seeking recognition in accordance with Article 23 (Article 40 (2)). 2. Relation to other instruments a) Relation to the Hague Convention of 1961 on Protection of Minors 5 In relation between Member States, the Brussels IIbis Regulation takes precedence over the

Hague Convention of 5 October 1961 concerning the Powers of Authority and the Law Applicable in respect of the Protection of Minors4 (Article 60 (a)). As most Member States are States Parties of this Hague Convention, the Hague Convention is almost completely eliminated between the Member States, especially its Article 7.5 It applies only with respect to the law applicable and in cases in which the minor has his or her habitual residence outside the European Union but in a State in which the Hague Convention is applicable, e.g. in Switzerland or Turkey. b) Relation to the European Convention of 1980 on Custody of Children 6 The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions

concerning Custody of Children and on Restoration of Custody of Children prepared by the Council of Europe6 and in force in all Member States except Hungary, Latvia, Lithuania and Slovenia, deals with the recognition and enforcement of custody decrees. If such decrees are

3

4 5 6

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Schulz, FPR 2004, 302; Tenreiro, L’espace judiciaire, p. 30. Also a judgment on penalty payment given in order to ensure compliance with a right of access to a parent (Zwangsgeld) is covered by Brussels IIbis Regulation: ECJ in Bohez, C-4/14, EU:C:2015:563. Recueil des conventions, Collection of Conventions (1951–2009) No. 10. Kropholler, Festschrift für Peter Schlosser, p. 449; Siehr, in: FS Dieter Schwab. p. 1287. Council of Europe Treaty Series No.105.

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given in a Member State their recognition in the other Member States will be governed by the Brussels IIbis Regulation according to Article 60 (d). c) Relation to the Hague Convention of 1980 on Child Abduction The Hague Convention of 23 October 1980 on the Civil Aspects of international Child 7 Abduction7 is in force in all Member States and is superseded by the Brussels IIbis Regulation according to its Article 60 (e). It is not quite clear what this means because the Hague Convention is a convention on legal assistance for the return of illegally abducted children without rendering a custody decree. Nevertheless the Brussels IIbis Regulation itself tries to implement the Hague Convention in Articles 10 (jurisdiction in cases of child abduction), 11, 40 and 42 (return of the abducted child), and 41 and 48 (right of access). All these provisions have to be applied when a Member State is asked to return an illegally abducted child under the Hague Convention of 1980 and the requesting State has to do the same. If a child was illegally abducted from a Member State to another Member State, the former Member State still has jurisdiction to order he return of the child under Article 10 Brussels IIbis Regulation and the Member State to which the child has been abducted has to recognise and enforce the return order according to Articles 23, 40 and 42. d) Relation to the Hague Convention of 1996 on Protection of Children The latest Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recog- 8 nition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children8 deserves a special treatment in Article 61. As regards the recognition and enforcement of judgments Article 60 (b) provides that the Brussels IIbis Regulation applies judgments of Member States even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the Hague Convention. If, e.g., a French court has ordered the return of a child illegally abducted to Switzerland, German courts have to recognise the French decision under the Regulation and try to enforce it against the abducting parent living in Germany. e) Relation to other instruments Between some Scandinavian countries the Regulation supersedes the Nordic Convention of 9 6 February 1931 comprising international private law provisions on marriage, adoption and guardianship: Article 59 (2). 3. Transitional provisions According to Article 64 (1) The Brussels IIbis Regulation applies in principle to proceedings 10 instituted after March 2005 and to judgments given after that date. For proceedings instituted under the Brussels II Regulation No. 1337/2000 (1 March 2001 until 28 February 2005) and judgments given thereafter, Article 64 (2) and (3) provides guidance. Article 64 (4) deals with proceedings instituted before 1 March 2001.

7 8

Recueil des conventions, Collection of Conventions (1951–2009) No. 28. Recueil des conventions, Collection of Conventions (1951–2009) No. 34.

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III. Violation of public policy: Article 23 (a) 1. Manifest violation 11 According to Article 23 (a), which copies Article 23 (2) (d) of the Hague Convention of 1996

on the Protection of Children (supra note 8), recognition may only be declined if the foreign judgment is “manifestly” contrary to the public policy of the Member State in which recognition is sought. This term “manifestly” is well known as a certain qualification of public policy. Public policy as a ground for non-recognition should be invoked – as in other European instruments9 – cautiously (cp. Recital 21: keeping “to the minimum required”) and restrictively as an “ordre public attenué”10 also paying regard to the “Inlandsbeziehung”11 (connection with the forum State, proximité) of the case.12 The closer a case is connected with the forum State, the more likely it is that a violation of local public policy may be assumed. Or, the other way around: If the case has no or no close connection with the forum State, the foreign decision hardly touches local public policy of the forum State. 12 As there is no review as to substance (Article 26) only the result of a foreign decision may be

evaluated and qualified as manifestly incompatible with the public policy of the recognising Member State.13 13 Although not mentioned in Article 23 (a) it may even be argued that between Member States

of the European Union the ground “public policy” for non-recognition should be applied extremely cautiously as a kind of “ordre public Européen”.14 Such a restrictive practice may be based on the general objective of the Regulation of “creating an area of freedom, security and justice” (cp. Recital 1 of the Regulation) and of non-discrimination (Article 12 EC). Therefore it is not admissible anymore to distinguish between cases in which nationals of the forum state are involved and those instances in which only foreign EU citizens are concerned. EU citizens should be treated alike under the “ordre public Européen” as soon as they are domiciled in the forum state. Nationality does not matter. A distinction can only be

9

10

11

12

13 14

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Cp. Hoffmann v. Krieg, (C-145/86) (1988) ECR 1988, 645, 668; Renault v. Maxicar, (C-38/98) (2000), ECR 2000 I 2973, 3021. As to this notion originating in French literature cp. Batiffol/Lagarde, Droit international privé, vol. I, 8th ed. Paris 1993, no.361, and transferred to European law in Article 34 (1) Brussels I Regulation (Article 27 (1) of the Brussels Convention). As to this term originating in German literature cp., e.g., Siehr, Internationales Privatrecht, 2001, 491, and transferred to European law in Article 34 (1) Brussels I Regulation (Article 27 (1) Brussels Convention). Re L (Brussels II Revised: Appeal), [2013] 1 FLR 430 (C.A) = [2013] 2 WLR 152 (C.A.): recognition of a Portuguese order for a small child to have contact with mother (in England) and father (in Portugal) on a 2-monthly rotational basis and reversing the lower court decision reported as LSdC (A Child), [2012] EWHC 983 (FamD); BGH 10 December 2014, BGHZ 203, 350 = IPRspr. 2014 No. 254 b: recognition of a foreign decision declaring a non-related parent as father of a child borne by a surrogate mother (in California) if one of the parents is related to the child. Espinosa Calabuig 771. Whether there is such a “European public policy” is still uncertain, cp. Siehr, (fn. 9) p. 488 et seq.

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drawn as to the territorial Inlandsbeziehung of the parties. If they have their domicile or habitual residence in the forum state, this connection is sufficient for invoking public policy. 2. Best interest of the child (and not the parent) Art. 23 (a) qualifies the application of non-recognition by adding the words “taking into 14 account the best interest of the child”.15 This qualification, however, does not mean that the best interest of the child amounts to an independent ground for non-recognition.16 This would be a review as to substance prohibited under Art. 26.17 The Brussels IIbis Regulation does not define or describe what is meant by “the best interest of the child”. Also the UN Convention of 20 November 1989 on the Rights of the Child refers to the “best interest of the child” but does not explain this term. There is a good reason for such reluctance because the “best interest of the child” cannot be defined without repeating this policy in similar vague descriptive words. The best interest of the child varies considerably as to the age, capacity, sex, and environment of the child. In all these cases the interests of the child prevail over the interest of the parents or of the group to which the parents belong (religious or ethnic groups). But even in this respect the best interests of the child may differ. Because most children are part of a family with certain traditions, they should be treated as a member of such a family and not be separated from it without good reason. Short: The best interest of the child has to be evaluated in every single case taking into account the special circumstances of that case.18 In case of violation of the best interest of the child, recognition may be granted if the judgment, slightly changed by the recognising court, does not violate the best interest of the child anymore.19 3. Examples of potential violations a) Custody according to fixed rules on age and sex In some jurisdictions custody is awarded according to fixed rules that boys of a certain age 15 have to be awarded to the father and girls may be left with the mother. It is very unlikely that a Member State is going to apply such rules. But if they did, such a custody decree would violate public policy and the best interest of the child.

15

16 17

18

19

The mother’s mental or emotional state is not important: Re L (Brussels II Revised: Appeal), [2013] 1 FLR 430 (C.A.). Belfast Health and Social Care Trust v. D.S. and O.L., [2012] 3 Irish Rep. 815, 824 et seq., (H.C.). Re S (Brussels II: Recognition: best interests of child) (No 1), [2004] 1 FLR 571 (FamD) paragraphs 32 et seq.; the same W v. W (foreign custody order enforcement), [2005] EWHC 1811 (FamD), paragraph 39. No public policy exception if the mother taking the child to the UK promised to obey the forthcoming judgment of the Spanish court of appeal but later did not do so: Re N (Abduction: Brussels II Revised), [2015] 1 FLR 227 (FamD). The same, as to rights of access in Belgium (concerning a child in the UK): Re S (Brussels II: Recognition: best interests of a child) (No 1), [2004] 1 FLR 571 (FamD). Re S (Brussels II: Recognition: best interests of child) (No 1), [2004] 1 FLR 571 (FamD), and Re S (Brussels II: Recognition: best interests of child) (No 2), [2004] 1 FLR 582 (FamD): rights of access in Belgium.

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b) Custody according to religion of the parents 16 Where custody is awarded according to an agreement of the parents regarding the religious

upbringing of the child20 or where a court decision enforces such an agreement or establishes custody according to religious upbringing, such an agreement or decisions may violate public policy if custody of the parent is in conflict with the best interest of the child. c) Return order to a non-Hague convention country 17 The Regulation also applies to cases in which custody is awarded to an non-European parent

and to an order to return an illegally abducted child to a country where courts are, by interior legislation, unable to consider the best interest of the child and rather deal with custody problems on the basis of strict and rigid rules of religious or secular law governing in this country. If there is non-international obligation to return the child to such a country and the States Parties to the Hague Convention (supra note 7) refuse to apply the Hague Convention and to enforce orders for return of the child to such a country,21 a foreign return order of this kind should not be enforced in other Member States because of manifest violation of public policy. 4. Jurisdiction of court of origin 18 According to Article 24 the jurisdiction of the court of the Member State of origin may not

be reviewed and, if lacking, may not be held as a violation of public policy referred to in Article 23 (a). This means that once a court or an authority is seized of divorce, separation or nullity proceedings or of proceedings in matters of parental responsibility the respondent has to fight jurisdiction in these courts and cannot rely on recognition proceedings in another Member State. Lack of jurisdiction is no more a ground for non-recognition of foreign decisions relating to parental responsibility. In child abduction cases the courts of the country of origin (e.g. Sweden) have to recognise the decision of the courts of the country to which the child has been taken (e.g. Lithuania) unless this decision manifestly violates the rules of jurisdiction and does not take into account the best interest of the child as understood in the country of origin. Therefore Sweden had to recognise decisions of the courts of Lithuania because the abducted child went to school in Lithuania, the courts of Lithuania assumed jurisdiction because of the habitual residence of the child in Lithuania and this decision did not violate the Swedish public policy because the best interest of the child had been taken into account.22 5. Difference in applicable law 19 It is no violation of public policy that the courts of the recognising Member State would have

applied a different law on the same facts. This is expressly mentioned in Article 25. Therefore recognition of foreign judgments relating to parental responsibility does not violate public policy if the recognising Member State would have applied a different law.

20 21

22

308

Cp. Strauber, Duke Law Journal 47 (1998) 971–1011. Re J (Child returned abroad: Convention rights) (2005) UKHL 40, (2005) 2 Family Law Reports 802 (H.L.), with regard to a decision of the English Court of Appeal to return a child to Saudi Arabia. ECJ judgment in P v. Q, C-455/15 PPU, EU:C:2015:763 = FamRZ 2016, 111.

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6. Non-review as to substance The authorities of the recognising Member State may look into the result of the foreign 20 judgment relating to parental responsibility in order to find out whether public policy has been violated but under no circumstances they may review the foreign decision as to its substance (Article 26). There is no révision au fond under European law of recognition and enforcement of foreign decisions. 7. Passage of Time Time may have passed considerably before recognition of the foreign judgment is applied 21 for in the country of recognition. This may be a ground for reconsidering the foreign decision. But these are rare cases. When a Spanish return order had to be recognised more than 3 years after the wrongful removal of the child from Spain, this was not sufficient not to recognise the Spanish judgment.23 8. Disclaimer of public policy The Regulation seems to imply that the authorities of the recognising Member State have to 22 decline recognition ex officio if the foreign decision violates local public policy and does not pay regard to whether the respondent applies for recognition and thereby implicitly accepts the foreign decision despite a potential violation of public policy. Different from the situation arising under Article 22 with respect to foreign divorces, legal separations and marriage annulments (supra Article 22 note 22), in decisions relating to parental responsibility the requirement of the “best interest of the child” may not be waived by anybody. IV. Lack of hearing of the child: Article 23 (b) Article 23 (b) copies the ground of non-recognition provided in Article 23 (2) (b) of the 23 Hague Convention of 1996 (supra note 8). These Articles indirectly enforce Article 12 of the UN Convention of the Rights of the Child of 1989. According to this Article the “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” and for this purpose “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” These provisions and the practice of the European Court of Human Rights24 may serve as guidelines for the application of Article 23 (b). Therefore the recognition of a foreign decision relating to parental responsibility must be declined if (1) the child has not been heard, either directly or indirectly, if (2) the child was, at the time of the decision, capable of forming his or her own views, and (3) if there was no case of urgency.25 The recognition cannot be declined if the child has not been heard by the deciding judge (as required, e.g., under constitutional law in Germany) but only by a social worker at the request of the court of origin.26 If the child may 23 24 25 26

LAB v. KB (Abduction: Brussels II Revised), [2010] 2 FLR 1664 (FamD). Elsholz v. Germany, (no. 25735/94) (2000), ECHR 2000-VIII 345, 366–367. Rauscher in: Rauscher, Art. 23 note 7; Völker/Steinfatt, FPR 2005, 415. Völker/Steinfatt, FPR 2005, 419.

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be capable of forming his or her own views, the child should be heard and his or her views should be given due weight.27 If provisional or protective measures had been taken, the hearing of the child is not deemed to be necessary.28 V. Incorrect or missing service: Article 23 (c) 1. Fair hearing 24 Article 23 (c) wants to make sure that the person in default had his or her day in court in

such a way as to enable him or her to arrange for his or her defence. Such a protection is only necessary in default proceedings. Here the applicant has to make sure that the other person is served properly with sufficient time for his or her defence. That the defendant brought an appeal against the decision in default does not amount to a relinquishment of the missing service.29 Provisions similar to Article 22 (b) of the Brussels IIbis Regulation are Article 34 (2) Brussels I Regulation and Article 27 (2) Brussels Convention and they may serve as guidelines. 2. Judgment in default of appearance 25 If the person habitually resident in a State other than the Member State where the proceed-

ings were brought does not enter an appearance, according to Article 18 (1) the court with jurisdiction should stay the proceedings so long as it is not shown that the person has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence or that all necessary steps have been taken to this end. If this is not done and a judgment in default of appearance has been given, there are serious doubts whether this judgment will be recognised in the other Member States. 3. No sufficient service of documents a) Initiating documents 26 National law of civil procedure decides which documents have to be served on the person in

order to start proceedings. These documents have to be served on the person. The applicant should ask for a certificate of service in order to prove that the person has been served properly. The proper service of documents which have to be served during the proceedings is no ground for non-recognition.

27

28 29

310

Re D (Recognition and Enforcement of Romanian Order), [2015] 1 FLR 1272, 1291 et ss. (FamD); approved by the Court of Appeal in Re D (a child) (international recognition), [2016] 3 All ER 770 (C. A.); further appeal to Supreme Court denied: Re D (a child) (No 2) (recognition and enforcement of judgment: Supreme Court jurisdiction), [2016] 4 All ER 95 (SC); BVerwG 29 November 2012, BVerwGE 145, 153 = IPRspr. 2012 No: 278 b (with respect to Turkey, a non-Member State); OLG Frankfurt/Main 16 January 2006, IPRspr. 2006 No. 146; OLG München 20 October 2014, FamRZ 2015, 602 = IPRspr. 2014 No. 261; OLG Schleswig 19 May 2008, FamRZ 2008, 1761 = IPRspr. 2008 No. 184; OGH 19 November 2014, iFamZ 2015, 87. OLG Stuttgart 5 March 2014, FamRZ 2014, 1567 = IPRspr. 2014 No, 257. AG Pankow-Weissensee 20 March 2009, IPRspr. 2009 No. 252.

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b) Service If the person is living in the Member State where the proceedings have been initiated, service 27 of process is governed by the local rules of civil procedure. If an absent party has been served according the rules of the originating State, this may be not sufficient for the State of recognition. The recognising State has to make sure that the absent party has had the opportunity to oppose the allegations of the other party. This is not the case if the party seeking to enforce the judgment did not reveal to the court the correct address of the absent party (even though also being at fault) in order to prevent her opposition.30 Where the person is living in another Member State international rules of service of process 28 apply. All Member States, except Denmark (infra note 29), are bound by the Regulation (EC) No. 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters.31 This Regulation applies also to matters relating to parental responsibility because these civil matters have not been excluded from the field of application. Between all Member States service of process has exclusively to be made according to Regulation (EC) No. 1393/2007 and cannot be substituted by national rules on service of process on persons living outside the jurisdiction.32 If documents have to be served to the person in Denmark, the Hague Convention of 15 29 November 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters33 applies and documents have to be served according to this Convention. Denmark, however, implemented the Regulation according to the Convention between the EU and Denmark of 200534 and now applies also the principles of the Regulation No. 1393/2007. If service has to be made to persons residing in a Non-Member State the Hague Convention 30 of 1965 (supra note 29) applies or other international instruments or national rules on service of documents on persons living outside the jurisdiction. Constructive notice by publication in the forum state is not sufficient. c) Sufficient time The person must have been served in “sufficient time”. The person must have been given 31 time to prepare for the appearance in court. If the person is living abroad, more time has to be given than in purely local proceedings because the person has to hire an attorney or appear in person in a foreign country. The court seized of matters relating to parental responsibility should be liberal in respect of the time given to the person in order to prevent the non-recognition of the judgment in the other Member States under Article 23 (c). As soon as the service has been made under the Regulation No. 1393/2007 (supra para. 28) 32 or under the Hague Convention of 1965 (supra para. 29), the time starts to run with the date 30

31 32

33 34

MD v. CT (Parental Responsibility Order), [2015] 1 FLR 213, 220 et seq. (FamD); De D (Recognition and Enforcement of Romanian Order), [2015] 1 FLR 1272, 1296 (FamD). O.J. 2007, L 324/79. Scania Finance France SA v. Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co., (C-522/03). (2005) ECR I-8639 with respect similar problems arising under the Brussels Convention of 1968. Recueil des conventions, Collection of Conventions (1951–2009), No. 14. J.O. 2005, L 300/55.

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of service mentioned in the certificate of service. Similar rules apply if documents are served diplomatically. In all these cases it is not necessary that the person takes notice of the document served. Receipt of the properly translated documents is sufficient. d) Arrangement for defence 33 The documents served must be precise and clear as to inform the person of the matter raised

in the court seized. The person must be enabled to arrange for his or her defence. Minor irregularities of service do not prevent such an arrangement and hence cannot be put forward as a ground for non-recognition. 4. No acceptance of judgment 34 The person may waive the requirement of fair hearing as a ground for non-recognition and

accept the decision rendered without his or her appearance. This acceptance has to be made unequivocally.35 A tacit acceptance is insufficient unless the special circumstances reveal that the foreign decision is expressly accepted. This is, e.g., the case where the person applies for updating the civil-status records on the basis of the foreign decision relating to parental responsibility. Not instituting an appeal may, in exceptional case, also be deemed as “unequivocal acceptance”.36 VI. Lack of hearing of interested person: Article 23 (d) 35 A judgment relating to parental responsibility may infringe the rights of a parent. These

rights are protected under Article 8 of the European Convention of Protection of Human Rights and Fundamental Freedoms37 and should only be infringed if there are good reasons for doing so. In any case this should not be done without fair hearing of that parent. Where the foreign judgment infringes the parental responsibility of a person and this person had not been given the opportunity to be heard, the judgment will not be recognised if this person raises this ground of non-recognition.38 Here the Regulation expressly mentions that a ground of non-recognition is only examined “on the request” of an interested person. VII. Irreconcilability with local judgment: Article 23 (e) 36 Judgments in relation to parental responsibility do not work res iudicata. They may be

changed later and adjusted to changed circumstances (supra para. 2). Therefore later judgments replace earlier ones. For this reason Article 23 (e) differs from the similar provision of Article 22 (d) insofar as the foreign judgment irreconcilable with a later local judgment will not be recognised.

35

36

37

38

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LG Linz 7 May 2009, EFSlg 46 (2009) 413 (No. 124.685 et seq.): appeal of decision of foreign court is no acceptance; LGZ Wien 23 April 2014, EFSlg. 51 (2014) 508 (No. 143.658): telephone calls with foreign police are no acceptance. Hausmann, Art. 23 at J 98; Paraschas in: Geimer/Schütze, Art. 23 note 32; Rauscher in: Rauscher, Art. 23 note 15; Weller in: Althammer, Art. 23 note 5. Council of Europe Treaty Series No. 5; Sahin v. Germany, (no. 30943/96) (2003), ECHR 2003-VIII 63, 82 et seq.; Sommerfeld v. Germany, (no. 31871/96) (2003), ECHR 2003-VIII 137, 152. Re D (Recognition and Enforcement of Romanian Order), [2015] 1 FLR 1272, 1297 et seq. (FamD).

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Irreconcilability with a later local judgment as a ground of non-recognition is not limited to 37 a judgment based on changed circumstances. An example of such a situation is mentioned in Article 11 (8) Brussels IIbis Regulation. If a child has been illegally abducted and a judgment of non-return has been given in the country to which the child has been abducted, the court at the child’s habitual residence may order the return and all Member States have to enforce this order. In such instances the courts give their judgments based on the same facts and circumstances. Yet, the judgment of the court at the child’s actual habitual residence prevails.39 Also in other cases a later judgment based on the same facts of the earlier decision bars the recognition of the earlier judgment.40 Whether this is a good policy seems to be doubtful. Yet, the Regulation wanted to eliminate the complicated question whether judgments are given on the same or different facts and circumstances. VIII. Irreconcilability with a foreign judgment: Article 23 (f) Article 23 (f) differs from Article 22 (d) in two respects. Only judgments given later in a 38 Member State or a non-Member State of the child’s habitual residence bar the recognition of an earlier judgment given in a Member State. The reason for this difference is the same as in Article 23 (e): Judgments in relation to parental responsibility do not bar any later judgments. Later judgments may adjust earlier ones to changed circumstances or replace the earlier one even if given on the same facts. The decision on recognition or non-recognition is not burdened with the difficult problem whether the conflicting judgments are given on the same or different facts. The other difference from Article 22 (d) refers to judgments given in a non-Member State. 39 Whether such a judgment will be recognised in a Member State has to be decided according to international instruments or national law of the recognising Member State. In Article 23 (f) there is a limitation to such an evaluation exclusively based on non-European law. Article 23 (f) requires that the non-Member State is the State in which the child was habitually resident at the time the judgment was given. IX. Compliance with Article 56: Article 23 (g) Article 56 deals with decisions relating to placement of a child in another Member State. In 40 such placement cases the central authorities or other authorities having jurisdiction in the latter State have to be consulted (Article 56 (1)) or, at least, be informed (Article 56 (4)). If this has not been done, the Member State in which the placement is to take place, is not obliged under Article 23 (g) to recognise the placement decision of the Member State of origin. X. Effect of non-recognition and recognition If a foreign judgment has been recognised, it should be enforced and no additional decision 41 39

40

Audienca Provincial de Málaga no. 108/2014 of 11 June 2014, Anuario español de derecho internacional privado 2014/15, 1098. The courts of the child’s actual habitual residence may give a judgment in accordance to the situation in that country and thereby override the foreign conflicting judgment. This may be the solution of the problem raised by Bogdan, Concise Introduction to EU Private International Law, 3d ed. 2016, 100.

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has to be given. If circumstances have changed since the foreign judgment has been given, the recognising Member State may adjust the foreign decision to the newly developed circumstances.41 Where the foreign judgment is not recognised, a new judgment may be given in the Member State of non-recognition if that State has jurisdiction under Articles 8– 15. Article 24: Prohibition of review of jurisdiction of the court of origin The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

1 Article 24 continues the tradition of European legislation to eliminate jurisdiction of the

court of origin as requirement for recognition in other Member States. Public policy as a ground of non-recognition may not be applied to the rules of jurisdiction and thereby indirectly be made to a requirement for recognition.1 Article 25: Differences in applicable law The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts. 1 European legislation has eliminated the application of the “correct” law governing as a

requirement for recognition. Article 34 of the Brussels Regulation No. 44/2001 does not contain any more what has been required by Article 27 (4) of the Brussels Convention of 1968 and still is required by the Lugano Convention of 1988. A foreign judgment may violate public policy but not because the recognising Member State would have applied a different law as the law applied by the foreign court (supra Article 22 note 20). Article 26: Non-review as to substance Under no circumstances may a judgment be reviewed as to its substance.

1 This Article is an essential part of any effective arrangement for recognition and enforce-

ment. In his report on the Brussels Convention, Jenard observed that it was ‘obviously an essential provision of enforcement conventions that foreign judgments must not reviewed’. 41

1

314

Dornblüth, Die europäische Regelung, p. 105–106; Shannon/Kennedy, IFL 2000, 117; Watté/Boularbah, Rev.trim.dr.fam. 2000, 587. ECJ 19 November 2015, case C-455/15 PPU; FamRB 2016, 337 with critical remarks Dimmler; cf. supra Art. 22 note 25 and Art. 23 note. 18.

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Chapter III: Recognition and Enforcement

Article 26

The court of a State in which recognition of a judgment was sought was not to examine the correctness of that judgment. It could not substitute its own discretion for that of the foreign court nor refuse recognition if it considered that a point of fact or of law has been wrongly decided.1 The Commission’s Explanatory Report on the 1998 Convention traced the history of such a provision and observed that it was a necessary rule in order not to subvert the meaning of the exequatur procedure. That procedure must not allow the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin.2 In terms of European texts, Article 26 can be traced to Article 29 of the Brussels Convention 2 of 1968, which is in virtually identical language: ‘Under no circumstances may a foreign judgment be reviewed as to its substance.’3 A provision in terms identical to those of the present Article formed Article 18 of the 1998 Convention, and Article 19 of Council Regulation 1347/2000. In the national laws of Member States, review of the substance of a foreign decision, révision 3 au fond, was sometimes allowed, especially where the judgment was inconsistent with the rules of the conflict of laws of the requested State, or at least its mandatory rules.4 The Regulation firmly outlaws review of the substance of the decision.5 As Droz comments, ‘By its very existence, an international convention on the effect of judgments establishes as between the Contracting States an unbreakable presumption that the judges of each and every such State are both professional and honest’.6 Family circumstances are very likely to change over time. That reality led some delegations 4 in the negotiation of the 1998 Convention to express anxieties about the inclusion of this Article, lest it meant that measures adopted in connection with parental responsibility became ‘immovable’. As the Commission recognised in its Explanatory Report, a change in circumstances may lead to a need for revision of the protective measures; although some measure of permanence was desirable, there could come a need for modification.7 The Commission referred to Article 27 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which provides ‘Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken’,8 which highlights the distinction between review as to the substance of the decision, which is prohibited, and such review as is necessary of the protective measures adopted in the light of changing circumstances. Article 26 of 1

2 3 4

5 6 7 8

Report Jenard, OJ 1979 C 59/1, citing Graulich, Principes de droit international privé (1961); Conflits de lois. Conflits de juridictions. No. 254 and Battifol, Traité elementaire de droit international privé no 763. Report Borrás, para. 77. The same language is now in Article 36 of Council Regulation No. 44/2001. See Droz, Compétence judiciaire et effets des jugements dans le marché Commun (1972) Nos 464–470 for a review of the position in Belgian, Dutch, French, German and Italian law. See, for example, Westpac Banking Corporation v. Dempsey (1993) 3 IR 331. Droz (fn. 4), no 473(a). Report Borrás, para. 78. The same text forms Article 26 of the Hague Convention of 13 January 2000 on the International Protection of Adults.

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the Regulation does not preclude the adoption by the competent authority of a new ruling on parental responsibility after a change in the relevant family circumstances. 5 In other cases, the firm prohibition of review of the substance of the foreign decision means

that the court invited to recognise or enforce a foreign judgment should not examine submissions already put before the foreign court, or seek to assess the chances of success of an appeal lodged or to be lodged in the State of origin.9 This is so whether the issue raised is one of fact or of law, and the prohibition of review applies when the point is one of the conflict of laws10 or the effect of the EC Treaty.11 It has, however, been argued12 that a court invited to recognise or enforce a judgment under a European Regulation must be free to determine for itself whether the judgment comes within the scope of the Regulation. This seems to be the practice under the instruments dealing with judgments in civil and commercial matters13 and appears to follow from the logic of system established by the Regulations concerned. 6 The use of the word ‘substance’ in the English text of Article 26 draws attention to the

traditional distinction between ‘substance’ and ‘procedure’. It seems that that distinction does not define the scope of the prohibition in Article 26. A number of courts have held that an examination of issues of a procedural nature would nonetheless amount to a review of the substance of the foreign judgment.14 A rather different approach was taken by AdvocateGeneral Jacobs in Hendrikman v. Magenta Duck & Verlag GmbH15 where the issue was whether the equivalent Article 29 of the Brussels Convention, prohibited a court before which recognition is sought from making any inquiry into whether the defendant was validly represented in the proceedings leading to the foreign judgment. In his opinion,16 Liège expressed the view that it would be stretching normal usage to construe the concept of the ‘substance’ of a judgment as encompassing such unequivocally procedural elements as service and representation. However, he still argued that the court before which enforcement was sought could not investigate this type of procedural irregularity. The grounds for refusing enforcement were set out exhaustively in other Articles, and procedural irregularities could not be investigated except to the extent that they fell within one of the grounds so set out. In other words, even if a restrictive meaning is given to the word ‘substance’ in Article 26, the structure of the Regulation as a whole extends and reinforces the prohibition of review of the substance of the foreign judgment.

9

10

11 12 13

14

15 16

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See van Dalfsen v. van Loon and Berendsen, (Case C-183/90) (1991) ECR I-4743; Liège CA, 17 May 1984, Jurisprudence de Liège (1984) 381; Grazzioli v. Farago, Luxembourg CA, 20 February 1991, Pas 28, 146 (all cases on the Brussels Convention 1968). See a Danish case (UfR (1990) 479 VL) where the foreign court had based its jurisdiction on national law and not the governing Brussels Convention 1968. Liège, 9 October 1995, Actualités du Droit (1996), p. 80. Dicey Morris and Collins, The Conflict of Laws (15th ed., 2012) para. 14–219. See LTU Gmbh v. Eurocontrol, (Case 29/76) (1976) ECR 1541; Gourdain v. Nadler, (Case 133/78) (1979) ECR 733; Sonntag v. Waldmann, (Case C-172/91) (1993) ECR I-1963. Les Assurances Internationales v. Elfring, Jur. Port. Anvers 197901980, 184 (notification addressed to wrong person); Bundesgerichtshof (VIII ZB 8/79, 16 May 1979, (1979) E.C.C. 321 (judgment without hearing the defendant). Hendrickman and Feyen v. Magenta Druck & Verlag, (Case C-78/95) (1996) ECR I-4943. Para 46 ff. The Court, however, did not reach the point: see para. 22 of the judgment.

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Chapter III: Recognition and Enforcement

Article 27

The relationship between the prohibition and the other Articles (of the Brussels Conven- 7 tion) was examined from a different point of view by an English court which held that the prohibition of a review of the substance of a foreign judgment prevails over the grounds on which recognition may be refused. In Interdesco SA v. Nullifire Ltd17 where it was alleged that the foreign judgment had been obtained by fraud, the Commercial Court held that where the foreign Court has, in its judgment, ruled on precisely the matters that a defendant seeks to raise when challenging the judgment, the Article prohibiting review of the substance precluded the requested court from reviewing the conclusion of the foreign court. In the Commission’s 2016 Proposal, in which this Article appears as Article 52, no change of 8 substance is suggested. Article 27: Stay of proceedings 1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged. 2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.

The Regulation seeks to ensure the ready recognition of judgments given in other Member 1 States. There are, however, circumstances in which the recognition of a foreign judgment can prove premature and so inconvenient. The recognition and enforcement of a judgment which has not become res judicata can lead to considerable inconvenience if the judgment is subsequently reversed on appeal. This Article aims to prevent the compulsory recognition of judgments which may be annulled or amended in the State of origin. It enables, but does not require, a court asked to recognise a judgment to stay the relevant proceedings. The text of Article 27 is derived from Article 30 of the Brussels Convention 1968, the second 2 paragraph of which was added by Article 14 of the 1978 Accession Convention.1 Similar powers to stay proceedings are given by Article 35 of the present Regulation to courts considering an appeal against a decision on an application for a declaration of enforceability. Paragraph 1 of Article 27 applies when an ordinary appeal against the judgment given in 3 another Member State has been lodged in that Member State. The power to stay proceedings depends upon the appeal having actually been lodged: it is not sufficient for the unsuccessful party in the foreign proceedings to show an intention to lodge a timely appeal. Although in terms limited to cases in which recognition is sought, the power seems to be 4 applicable when an application is made for a declaration of enforceability, for enforcement presupposes recognition.2 17 1 2

Interdesco S.A. v. Nullifire Ltd, (1992) 1 Lloyd’s Rep 180. See now Article 37 of Council Regulation 44/2001. See Article 35 for the power to stay proceedings at the appeal stage.

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5 The power may be exercised by the court of its own motion.3 The text, in contrast to that of

Article 35, paragraph 1, does not speak of an application by the party against whom enforcement is sought. In accordance with Article 21, a judgment given in one Member State is to be recognised in other Member States without any special procedure being required, and there may be no ‘proceedings’ to stay. However, Article 21(3) enables any interested party, using the procedures set out in Section 4 of Chapter III of the Regulation (those primarily designed for use in the context of enforcement), to apply for a decision that the judgment be or not be recognised. The present Article enables the proceedings following such an application to be stayed. 6 The power to order a stay applies only when the appeal is an ‘ordinary appeal’. The dis-

tinction between ordinary and extraordinary appeals is found in many Member States but it is not the same in all States. In some States, there are clear legal definitions; in others, the distinction is drawn on the basis of the opinions of doctrinal literature. The matter was closely examined, in the context of the equivalent provision in the Brussels Convention, by the European Court in Industrial Diamond Supplies v. Riva.4 The Court held that the distinction between ordinary and extraordinary appeals had to have an autonomous meaning; the nature of the distinction drawn in the national law of the State of origin or in that of the State asked to recognise the judgment was not determinative. For the purposes of the Convention, and now of the present Regulation, an ordinary appeal is any appeal which forms part of the normal course of an action and which, as such, constitutes a procedural development which any party must reasonably expect. The Court held that any appeal bound by the law to a specific period of time which starts to run by virtue of the actual decision whose recognition is sought constitutes an ordinary appeal. Any appeal which might be dependent on events which were unforeseeable at the date of the original judgment (for example, the unexpected discovery of new evidence leading to an application for a retrial) or upon action taken by persons who were extraneous to the judgment would not be an ordinary appeal. 7 Applying the approach adopted by the European Court, it has been held (in cases under the

Brussels Convention 1968) that recours en révision in France5 and pending arbitration procedures6 is not an ordinary appeal; and that an appeal to a Court of Cassation is an ordinary appeal.7

8 The power to stay proceedings is a matter of discretion; the Article imposes no mandatory

duty to stay. This is a necessary safeguard against possible abuse by a party seeking to delay the recognition and enforcement of a judgment by lodging a hopeless appeal. The question arises, however, as to the basis on which the discretion is to be exercised. There are cases, especially in the family context, where delay in recognising or enforcing a judgment could

3

4 5

6 7

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See Liège, 8 March 1984, Jurisprudence de Liège (1984) 289, where the court considered the issue despite the fact that neither party wished for a stay. Industrial Diamond Supplies v. Riva, (Case 43/77) (1977) ECR 2175. Interdesco S.A. v. Nullifire Ltd. (1992) 1 Lloyd’s Rep. 180 (allegation of fraud based on newly discovered material). OLG Hamm, 20 W 19/93, 28 December 1993, RIW 1994, p. 243. Liège, 8 March 1984, Jurisprudence de Liège (1984) 289.

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Chapter III: Recognition and Enforcement

Article 27

have harmful effects on the child or adult parties concerned,8 and this will no doubt predispose a court to decline to stay proceedings. In Industrial Diamond Supplies v. Riva,9 the Court spoke of the power to stay proceedings 9 ‘whenever reasonable doubt arises with regard to the fate of the decision in the State in which it was given’. However, there is at this point a tension between Article 27 and Article 26: an argument that the appeal in the State of origin is very likely to succeed, because the foreign court’s decision was plainly wrong, cannot be entertained, for that would have the effect of reviewing the substance of the foreign judgment, expressly prohibited by Article 26. A French cour d’appel addressed this issue and held that a request for a stay pending the outcome of an appeal was not in conflict with the prohibition of review of substance; the merits were being addressed in the pending appeal. In line with this approach, courts do explore the likelihood that the pending appeal will affect the outcome, or the particular aspects relevant to recognition or enforcement.10 In a similar context, of an appeal against a declaration of enforceability the European Court has held that the court may take into consideration, in a decision concerning an application for the proceedings to be stayed, only such submissions as the applicant was unable to put before the court of the State in which the judgment was given.11 Paragraph 2 of Article 27 makes special provision in respect of judgments of courts in 10 Ireland and the United Kingdom. In those States there is no distinction between ordinary and extraordinary appeals; hence the reference to ‘appeal’ without any qualifying adjective. However, the power of a court in another Member State to stay proceedings only arises if the enforcement of the judgment is suspended in Ireland or the United Kingdom, as the case may be, by reason of an appeal. In those States, the lodging of an appeal does not automatically suspend the enforcement of a judgment; a distinct order to that effect is needed. The Commission’s 2016 Proposal would make a number of changes to this Article, using 11 language based on that in Article 38 of Regulation 1215/2012. The redrafted Article would no longer refer to cases in which recognition is sought, so that it would also apply in the context of enforcement. It would make it clear that a stay of proceedings could apply to a part as well as the whole of the proceedings. It would no longer refer to “an ordinary appeal” but speak more generally of the decision being “challenged” in the State of origin. Two new grounds on which a stay might be ordered would be added. The first, based on the corresponding provision in Article 38(b) of Regulation 1215/2012 would be that an application had been submitted for a decision that there were no grounds for refusal of recognition referred to in Articles 37 and 38 of the redrafted Regulation or for a decision that the recognition was to be refused on the basis of one of those grounds. The second, which takes account of the fact that decisions as to children may be liable to modification in the light of changing circumstances and so would apply only in cases concerning parental responsibility, would be that proceedings to modify the decision or for a new decision on the same 8

9 10

11

Cf. in a commercial context the Danish decision, UfR (1990) 83 VL, where a stay was upheld as the party seeking enforcement had been given adequate security. Industrial Diamond Supplies v. Riva, (Case 43/77) (1977) ECR 2175, at para. 33. Liège, 8 March 1984, Jurisprudence de Liège (1984) 289; Societe Protis v. Societe Cidue, Versailles CA, 21 June 1990, noted Gaudemet-Tallon Rev.Crit.DIP (1992) 126. Van Dalfsen v. van Loon and Berendsen, (Case C-183/90) (1991) ECR I-4743.

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subject matter were pending in the Member State having jurisdiction over the substance of the matter under this Regulation. The grant of a stay would remain discretionary, so that, for example, the court might refuse a stay if the modification proceedings were judged to be mere delaying tactics.

Section 2: Application for a declaration of enforceability

Introductory remarks 1 Section 2 of Chapter III of the Regulation deals with enforcement of judgments. It is to be

read with later provisions: Section 3 of the same Chapter (Articles 37 to 39) deals with documentation, and supplements both Sections 1 and 2; some additional provisions dealing with certain judgments concerning rights of access and of certain judgments which require the return of the child form Section 4 (Articles 40 to 44); Article 47 deals with enforcement procedure. 2 As Section 1 of Chapter III was headed ‘Recognition’, it might have been expected that

Section 2 would have the heading ‘Enforcement’, as is the case in the corresponding provisions of Council Regulation No. 44/2001. The actual methods for enforcing a judgment are, however, dealt with in Article 47 of the present Regulation, and the heading to Section 2 makes it clear that it deals with a rather different question, the manner in which a foreign judgment is rendered enforceable in another Member State. The Commission’s 2016 Proposal would make major changes in this area and Section 2 would indeed be headed ‘Enforcement’.

3 As will be seen, the procedure is designed to be a simple one. An application for a declaration

of enforceability is made to the appropriate court, but at that stage no person may make any submissions to the court. The Regulation gives limited powers of refusal to the court in which enforcement is sought. Once the first-instance court has reached its decision, which it must do without delay, either party has a right of appeal. There are strictly limited opportunities for further appeal or other challenge to the decision of the appellate court. 4 The thinking behind this procedure is that the aims of the Regulation could not be met if

enforcement was a cumbersome process with many procedural hurdles to be surmounted. The Regulation uses a rapid ex parte procedure for the initial application. At that stage there is no contentious or adversarial procedure such as was formerly found in the systems of many Member States. 5 In preparing its 2016 Proposal, the Commission noted the widespread view that, whatever

the intentions behind the Regulation, in practice parents and, in particular, children suffered from the complex, lengthy and costly procedures they had to go through in order to obtain enforcement of a parental responsibility judgment abroad. There was potential for delay in the State of origin, especially where a judgment was subject to appeal and the State of origin had no practice of provisional enforceability. Further delay was caused by the need to

320

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Chapter III: Recognition and Enforcement

Article 28

complete exequatur procedures in the State where enforcement was sought, which in some Member States were expensive and time-consuming, after which further procedural steps might be needed to secure actual enforcement. Under the existing Regulation, there is no requirement of exequatur where the relevant order concerns access rights and in the case of some return orders. It is required in other cases, though only in a very small number of cases is enforcement eventually refused. The Proposal sought to abolish exequatur in all parental responsibility cases, but with safeguards for the defendant who could take steps in the State of enforcement to assert any of the grounds of non-recognition or could apply for a temporary stay of enforcement there. Additionally, an obligation to give the child an opportunity to express his or her views would be introduced, and also a time limit for the actual enforcement of a judgment. Article 28: Enforceable judgments 1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. 2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 28 introduces the notion of a declaration of enforceability, to be granted in respect of 1 a judgment on the exercise of parental responsibility in respect of a child which is enforceable in the Member State in which the judgment was given and which has been served. Under the Commission’s 2016 Proposal, the declaration of enforceability would disappear 2 and Article 30(1) of the recast Regulation would declare that a decision on matters of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State is to be enforceable in another Member State without any declaration of enforceability being required. Article 30(2) would contain a rule, based on the present text of Article 41(1), second paragraph, that for the purposes of enforcement in another Member State of a decision granting rights of access, the court of origin may declare the decision provisionally enforceable, notwithstanding any appeal, even if national law does not provide for such provisional enforceability. The text of Article 28 is derived, with necessary verbal changes and the addition of the 3 reference to the service of the judgment, from Article 31 of the Brussels Convention 1968. The reference to service was introduced at the final stage of consideration of the draft Regulation to clarify a point felt to be obscure. The final words of paragraph 1, ‘it has been declared enforceable there’ were included in the equivalent Article of the Lugano Convention to replace a reference to an order for enforcement, a reference which was inappropriate to the legal systems of some parties to that Convention. The Lugano variant was incorporated into the Brussels Convention text by the 1989 Accession Convention, Art. 9. The immediate predecessors of the current text are Article 20 of the 1998 Convention and Article

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21 of Council Regulation 1347/2000. Paragraph 2, dealing with the procedures in Ireland and the United Kingdom, was added by the 1978 Accession Convention, Art. 15. 4 The judgment must fall within the definition given in Article 2.4, that is one pronounced by

a court (or other authority with jurisdiction) of a Member State, whatever the judgment may be called. 5 The judgment must be concerned with the exercise of parental responsibility, and that

attracts the definition of parental responsibility in Article 2.7 as meaning all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect; and including rights of custody and rights of access. 6 The judgment must be enforceable in the Member State in which it was given. It does not

have to be res judicata; a judgment may be enforceable under the law of most Member States even if it is the subject of a pending appeal. In the normal case, the enforceability of the judgment in the State of origin will be established by the certificate issued by a competent court or authority of the Member State of origin under Article 39 and in the form specified in Annex II. In accordance with Article 38, a court may decide to accept an equivalent document or, if it considers that it has sufficient information before it, dispense with documentary proof. It needs to be borne in mind that a judgment which has been enforceable may cease to be enforceable, in some legal systems simply by lapse of time. The court asked to issue a certificate of enforceability has to consider the position as at the date it considers the application.

7 The precise meaning of ‘enforceable’ was considered by the European Court in the context

of the Brussels Convention 1998 in Coursier v. Fortis Bank SA.1 The issue arose in that case because a decision taken in an insolvency context in the State of origin, not entitled to recognition under the Convention because insolvency is outside its scope, conferred immunity under the law of that State from execution of the judgment the enforcement of which was sought. Although it was argued that a judgment could not be accorded greater authority and effectiveness than it had in the State of origin, the court held that the judgment was enforceable within Article 31 of the Convention. The term ‘enforceable’ was to be interpreted as referring solely to the enforceability, in formal terms, of foreign decisions and not to the circumstances in which such decisions might be executed in the State of origin.

8 The judgment must have been served. This will usually be established by the certificate

issued by a competent court or authority of the Member State of origin under Article 39 and in the form specified in Annex II. The attestation of enforceability and service in that form indicates whether the judgment has been served and on what date. This suggests that ‘service’ is to be understood in accordance with the law of the State of origin, but where service is to be effected in some other State it would be necessary to have regard to any relevant provisions of its law. As between the Member States, Recital (15) to the Regulation indicates that Council Regulation No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters2 1 2

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Coursier v. Fortis Bank (Case C-267/97) (1999) ECR I-2543. OJ L 160, 30.6.2000, p. 37.

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Chapter III: Recognition and Enforcement

Article 28

should apply to the service of documents in proceedings instituted pursuant to the present Regulation, and it seems apt to apply to the service of judgments where this has to be in another Member State. In accordance with Article 38, a court may decide to accept an equivalent document or, if it considers that it has sufficient information before it, dispense with documentary proof. The application for a declaration of enforceability may be made by any ‘interested party’. 9 This term covers not only the spouses or children but must also include the public authority (Public Prosecutor’s Office or similar authority) in States where that is possible.3 Once the declaration of enforceability has been issued, the judgment ‘shall be enforced’. The 10 procedure for enforcement is a matter for national law under Article 47.1. The meaning of ‘enforced’ in this context of the equivalent provision in Council Regulation 1347/2000 was considered by the English High Court in Re S. (Brussels II: Recognition: Best Interests of Child) (No. 2).4 The court held that the term did not carry the narrow meaning of ‘apply sanctions’, rather it meant to give force or effect to the underlying judgment or, in plain language, to make it happen. Holman J. observed that child contact involved and depended upon the interaction of human beings, including the child himself, and is almost invariably a process (i.e., repeated contact over a period) rather than a single event. To apply a sanction at a particular part of the process, or to insist that a particular part of the process takes place, might be to imperil future parts of the process. To make contact happen in the long term might require restraint in the short term. So, as an integral part of the active function of enforcing, i.e., making happen, the proposed contact in the longer term, a court might have to adapt or show restraint in the shorter term. That did not mean, however, that the court had any discretion under the Regulation as to the extent to which and terms upon which it would enforce a foreign judgment: that would be a power to vary, which was excluded by the Regulation. The legal systems of Ireland and the United Kingdom and Irish law do not have the exe- 11 quatur system. In their systems, a person seeking enforcement of a foreign judgment must either, in the case of money-judgments, bring an action on the debt created by the foreign judgment or, in the present context, make use of a system under which judgments from courts in designated countries may be registered in the courts of the relevant part of the United Kingdom. A registered judgment has the same force as a judgment of the registering court itself. Paragraph 2 of Article 28 refers to this system, and usefully distinguishes between the different parts of the United Kingdom. In England and Wales, the Family Procedure Rules govern the registration of judgments under Article 28.2.5 In Scotland, the procedure is by way of petition.6 3

4 5

6

See the Borrás Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, OJ C 221, 16/07/1998, p. 27. (2003) EWHC 2974 (Fam), (2004) 1 F.L.R. 582. Family Procedure Rules 2010, S.I. 2010 No. 2955, r. 31.7 (orders as to access and return orders) and r. 31.8 (other cases). Rules of the Court of Session 1994, S.I. 1994 No. 1443, r. 62.69 as inserted by Act of Sederunt, S.I. 2005 No.135. For Northern Ireland, see Family Proceedings Rules (Northern Ireland) 1996, r. 8.36 as substituted by the Family Proceedings (Amendment) Rules (Northern Ireland) 2011, S.R. 2011/64.

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Article 29: Jurisdiction of local courts 1. An application for a declaration of enforceability shall be submitted to the court appearing in the list notified by each Member State to the Commission pursuant to Article 68. 2. The local jurisdiction shall be determined by reference to the place of habitual residence of the person against whom enforcement is sought or by reference to the habitual residence of any child to whom the application relates. Where neither of the places referred to in the first subparagraph can be found in the Member State of enforcement, the local jurisdiction shall be determined by reference to the place of enforcement.

1 This Article identifies the court within each Member State to which an application is to be

made for a declaration of enforceability. As already noted, this declaration would disappear under the Commission’s 2016 Proposal. 2 The Article is the equivalent of paragraphs 1 and 2 of Article 21 of the 1998 Convention and

of paragraphs 1 and 2 of Article 22 of Council Regulation 1347/2000, derived in turn from Article 32 of the Brussels Convention 1968. Unlike the earlier European instruments, the list of courts is not incorporated within the Regulation (either in the text, as in the case of the 1998 Convention, or in an Annex, as in the case of Council Regulation 1347/20000) but is published separately and revised from time to time. In the present Regulation, the jurisdiction of local courts for the purposes of recognition, as opposed to enforcement, is dealt with separately, in Article 21, paragraph 3. 3 Paragraph 1 of the Article is a means of implementing a wish to provide easily accessible

information as to the courts to which applications were to be made. The list is published in the Official Journal and is, therefore, widely available in libraries and electronic databases. 4 The list referred to of courts to which applications are to be made under Article 29.1, as

updated on 23 March 2013 was as follows: Austria:

the Bezirksgericht;

Belgium:

the tribunal de premiere instance/rechtbank van eerste aanleg/erstinstanzliches Gericht;

Bulgaria:

the окръжният съд;

Cyprus:

the Οικογενειακó Δικαστήριο Λευκωσίας-Κερύνειας, the Οικογενειακó Δικαστήριο Λεμεσού-Πάφου or the Οικογενειακó Δικαστήριο Λάρνακας-Αμμοχώστου;

Czech Republic:

the okresni soud or soudni executor;

Estonia:

the maakohus;

Finland:

the Käräjäoikeus/tingsrätt;

France:

the Président du tribunal de grande instance;

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Germany:

in the district of the Kammergericht (Berlin), the Familiengericht Pankow/ Weissensee; in the districts of the Oberlandesgerichte ‘ Braunschweig’, ‘ Celle’ and ‘ Oldenburg’, the ‘ Familiengericht Celle’; in the districts of the remaining Oberlandesgerichte, to the Familiengericht located at the seat of the respective Oberlandesgericht;

Greece:

the Πρωτοδικείο;

Ireland:

the High Court;

Italy:

the Corte d’ appello;

Latvia:

the rajona (pilsētas) tiesā;

Lithuania:

the Lietuvos apeliaciniam teismui;

Luxembourg:

the presiding judge of the Tribunal d’ arrondissement;

Malta:

the Prim’ Awla tal-Qorti Civili or il-Qorti tal Magistrati ta’ Ghawdex fil-gurisdizzjoni superjuri taghha;

Netherlands:

the voorzieningenrechter van de rechtbank;

Poland:

the Sad okręgowy;

Portugal:

the Tribunal de comarca or Tribunal de Familia e Menores;

Romania:

the tribunalul;

Slovakia:

the Okresný sud for the habitual residence of the child or Okresný sud Bratislava I when a child has no habitual residence in the Slovak Republic for an application relating to parental responsibility;

Slovenia:

the okrožno sodišče;

Spain:

the Juzgado de Primera Instancia;

Sweden:

the Svea hovrätt;

United Kingdom:

(a) in England and Wales, the High Court of Justice – Principal Registry of the Family Division; (b) in Scotland, the Court of Session, Outer House; (c) in Northern Ireland, the High Court of Justice.

The inclusion of a provision more closely regulating the jurisdiction of the courts of Member 5 States, by specifying which of a number of local courts within a particular Member State was to have jurisdiction, was the subject of some controversy at the time of the negotiation of the 1998 Convention. In some Member States, the list established under paragraph 1 identifies a single court: for example the High Court in Ireland and the Court of Appeal in Stockholm (Svea hovratt) in Sweden. It is not necessary to refer to paragraph 2. But in other Member States the list identifies a type or level of court, for example a tribunal de grande instance in France. These courts may be very numerous (there are 173 tribunaux de grande instance in the French system) and paragraph 2 identifies to which of those courts an application is to be directed.

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6 The first sub-paragraph of paragraph 2 contains a rule referring to two possible connecting

factors. The local court with jurisdiction is identified by reference either to place of habitual residence of the person against whom enforcement is sought or by reference to the habitual residence of any child to whom the application relates. In some cases this will give the applicant a choice of courts. Member States are not free to restrict that choice, for example, by imposing an order of priority as between the two connecting factors, or to enact rules giving additional courts jurisdiction;1 to give Member States such a power would reduce the transparency aimed for in the Regulation. 7 Jurisdiction is given to the court of the place of habitual residence of ‘the person’ against

whom enforcement is sought. There might be cases in which enforcement is sought against two, or possibly even more, persons. It is unclear whether in such cases the court for the place in which one person is habitually resident may deal with enforcement against the other person or persons. There is no equivalent in the Regulation of Article 6 of Council Regulation 44/2001 which deals, inter alia, with jurisdiction over co-defendants. Similarly, the reference to ‘any child to whom the application relates’ raises the issue whether or not, where a judgment concerns two or more children, and the children are habitually resident in different places, the court for any one of those places will have jurisdiction. Although the text of the Regulation does not address these issues, the clear policy of creating a simple system of enforcement expressed in Recital (23) of the Regulation argues for a court having wide jurisdiction to deal with all issues and against any division of jurisdictional competence between different local courts. 8 The court to which an application is made must have power to check that it does indeed have

jurisdiction. The documents which have to be supplied with the application (in accordance with Article 30, paragraph 3) will not establish the habitual residence either of the person against whom enforcement is sought or the relevant child. The national law of Member States may contain procedural rules to deal with this matter, and possibly also to provide for the transfer of a case to another local court if it turns out that the chosen court does not in fact have jurisdiction. 9 In some cases, it might be desired to enforce a judgment against a person, or in respect of a

child, present but not habitually resident in a particular Member State. In such a case, neither of the connecting factors mentioned in the first sub-paragraph of paragraph 2 could be relied upon. Hence the second sub-paragraph, giving jurisdiction in such cases to the local court for the place of enforcement. 10 If an application for a declaration of enforceability is rejected on the ground that the chosen

local court does not have jurisdiction, a new application can be made to the correct court. This is not a case of an appeal against the original decision.

1

326

Cf OLG Saarbrücken, 24 September 1992 (5 W 84/91), RIW (1993), p. 672, a case under Article 32(2) of the Brussels Convention 1968.

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Article 30

Article 30: Procedure 1. The procedure for making the application shall be governed by the law of the Member State of enforcement. 2. The applicant must give an address for service within the area of jurisdiction of the court applied to. However, if the law of the Member State of enforcement does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem. 3. The documents referred to in Articles 37 and 39 shall be attached to the application.

Procedural matters are in principle for the lex fori. This Article respects that principle, 1 providing that the national law of Member States governs the procedure for making an application for a declaration of enforceability. It does, however, contain two mandatory requirements, as to an address for service (or the appointment of a representative ad litem) and as to the documents that must be supplied with the application. This Article is the equivalent of Article 22 of the 1998 Convention and of Article 23 of 2 Council Regulation 1347/2000, derived in turn from Article 33 of the Brussels Convention 1968. Article 30, together with Article 31, establishes the ex parte procedure for applying for a 3 declaration of enforceability, following the general pattern adopted in the Brussels Convention 1968. The Article does not seek to regulate all aspects of this procedure, referring most matters to 4 the national law of the Member State in which the application is made. The Borras report on the equivalent Article in the 1998 Convention1 uses very similar language to that of the Jenard report on the corresponding Article of the Brussels Convention 1968.2 The author speaks of national legislation as governing the information to appear in the application, the number of copies to be submitted to the court, the authority with which they are to be deposited, the language in which they are to be drawn up and also whether or not a lawyer or any other representative or agent needs to be involved. However, the examples given need to be read with the text of the Regulation: national law may not dispense with the documents referred to in paragraph 3 of the present Article, and the local court to which the application is to be made is specified in Article 29. National law may, however, identify the person or office within the court’s administration to whom the application must be delivered, and may prescribe the method of delivery. The Regulation contains, in paragraph 2 of Article 38, a provision enabling the court the required translations of the documents which accompany the application; but that does not deal with the language of the application itself, which in some Member States, such as Belgium, may depend on the location of the court. The European Court has referred to the procedural rules (in the context of the Brussels Convention 1968) as dealing with the time when the application is to be made and of the form which it is to take.3 1 2 3

OJ C 221, 16/07/1998, para. 85. Report Jenard, OJ 1979 C 59/1 at p. 49. Van der Linden v. Berufsgenossenschaft der Feinmechanik und Elektrotechnik (Case C-275/94), (1996) ECR I-1393.

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5 Paragraph 2 requires the applicant to give an address for service within the area of juris-

diction of the court applied to. The purpose of this provision is to enable the appropriate officer of the court to notify the applicant of the decision given on the application, in accordance with Article 32, and to ensure that documents relating to any appeal brought by the other party under Article 33 are duly served. In some Member States the notion of an ‘address for service’ is unknown, and the paragraph provides for an equivalent procedure, the appointment of a representative ad litem. The procedure for doing so will be set out in national law in accordance with the general principle in paragraph 1. The European Court held in Carron v. Federal Republic of Germany,4 interpreting equivalent provisions in the Brussels Convention 1968, that the law of the State in which enforcement is sought governs the entire procedure for making the application and that the furnishing by the applicant of an address for service of process is part of that procedure. Where the applicable national law did not indicate the exact time at which an address for service is to be given, it must be given sufficiently early to ensure that the proceedings are not improperly delayed and that the rights of the party against whom enforcement is sought are safeguarded. At the latest it must be no later than the date on which the decision authorising enforcement was served. The French Cour de Cassation applied the Carron decisions in Office des Affaires Sociales et de la Jeunesse de la Ville de Karlsruhe v. Ducatillon.5 An application to declare enforceable a German notarial deed succeeded, despite the fact that the address for service given by the applicant at the time of the application was outside the jurisdiction of the court. The applicant had later provided a different address, within the jurisdiction, and this was timely. The Regulation specifies no sanction for failure to provide an address for service. This is a matter for the national law of the Member State in which enforcement is sought. The European Court, in so ruling in the context of the Brussels Convention 1968, held, however, the provisions of national law must conform to the aims of the Convention; the sanction provided for might neither cast doubt on the validity of the enforcement order nor in any way prejudice the rights of the party against whom enforcement was sought.6 6 Paragraph 3 requires that the documents referred to in Articles 37 and 39 be attached to the

application. Strictly that requires affixing the documents by stapling or other means, but (especially if national law allows the application to be made electronically) it is thought that the supply of the documents at the same time as the application itself will suffice. Article 38, paragraph 1, provides that if the documents specified in Article 37(1)(b) or (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production. This gives the court ‘a degree of discretion’7 and strongly suggests that a failure 4 5

6 7

328

Carron v. Federal Republic of Germany, (Case 198/85), (1986) ECR 2437. 18 April 1989, D (1990) 146, note Rémery. See also Rhatigan v. Textiles Y Confecciones Europeas S.A. (Irish Supreme Court), (1992) I.L.Pr. 40. Carron v. Federal Republic of Germany, (Case 198/85), (1986) ECR 2437. See Van der Linden v. Berufsgenossenschaft der Feinmechanik und Elektrotechnik (Case C-275/94), (1996) ECR I-1393, per Advocate General Fennelly commenting on Article 33 of the Brussels Convention 1968.

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Chapter III: Recognition and Enforcement

Article 31

to supply all necessary documents is not immediately fatal to the application. That was also the view of those drafting the equivalent provision in the Brussels Convention 1968.8 A court should therefore deal with the omission of documents in one of the ways mentioned in Article 38, and only reject the application on the ground of inadequate documentation if attempts to obtain the necessary information fail.9 Under the Commission’s 2016 Proposal, the declaration of enforceability will disappear. 7 Article 31 of the recast Regulation would deal with the procedure for the enforcement of decisions given in another Member State, at present dealt with in Article 47. Article 31: Decision of the court 1. The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application. 2. The application may be refused only for one of the reasons specified in Articles 22, 23 and 24. 3. Under no circumstances may a judgment be reviewed as to its substance.

Article 31 aims to ensure that a decision on an application for a declaration of enforceability 1 is given promptly in an ex parte procedure, and underlines the limits placed on a court’s power to refuse an application. Under the Commission’s 2016 Proposal, the declaration of enforceability would disappear and this Article would have no equivalent in the recast Regulation. This Article is the equivalent of Article 23 of the 1998 Convention and of Article 24 of 2 Council Regulation 1347/2000, derived in turn from Article 34 of the Brussels Convention 1968. Paragraph 1 specifies that the court applied to is to give its decision ‘without delay’. There is 3 no specific time-limit or even an indicative period within which the decision is to be given. Such a provision would unduly hamper the court, and would be incapable of enforcement. Given the limits on the power of the court to refuse an application, the great majority of cases will require no lengthy consideration and the encouragement to act without delay is all that seems necessary in the text of the Regulation. Paragraph 1 also establishes the ex parte nature of the procedure on an application for a 4 declaration of enforceability. Ex parte proceedings are without notice to anyone other than the applicant, but should others become aware of the making of an application, they (that is, any person against whom enforcement is sought and the child itself) are not entitled to make any submissions on the application. Although the paragraph does not in terms prohibit a court from allowing submissions, merely providing that the respondent parties are not ‘entitled’ to be heard, the policy of the Regulation is clearly to avoid the proceedings becom8 9

Report Jenard, OJ 1979 C 59/1 at p. 50. See Banca Pinto & Sotto Mayor SA v. Santos Portela (Coimbra CA, 17 December 1995), Colectânea de Jurisprudência (1995) t. IV, 35.

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Article 32

Brussels IIbis Regulation

ing inter partes at this stage. If submissions are in fact received, the court may take account of them.1 5 The element of surprise which the Jenard report on the Brussels Convention 1968 saw as

necessary in an enforcement procedure2 may be less important in the family context, where the issue that troubled the authors of the Brussels Convention, that the respondent might be given the opportunity of withdrawing his assets from any measure of enforcement, does not arise. It may, however, be important in some child abduction cases. 6 Paragraph 2 specifies that an application may be refused only for one of the reasons specified

in Articles 22 (grounds of non-recognition for judgments relating to divorce, legal separation of marriage annulment), 23 (grounds of non-recognition for judgments relating to parental responsibility) and 24. The reference to Article 24 is not to any additional ground for refusal: that Article prohibits any review of the jurisdiction of the court of the Member State of origin and ensures that the test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules as to jurisdiction set out in Articles 3 to 14. All these Articles are commented on above, and it is not necessary to repeat that material here.3 7 Paragraph 3 of the Article repeats in this context the prohibition on any review of the

substance of the foreign judgment contained in Article 26. As an English court has observed,4 that embargo is as emphatic in relation to enforcement as in relation to recognition. There is no power to vary or review the terms of the judgment. Article 32: Notice of the decision The appropriate officer of the court shall without delay bring to the notice of the applicant the decision given on the application in accordance with the procedure laid down by the law of the Member State of enforcement.

1 Article 32 further stresses the prompt response expected of courts dealing with applications

for declarations of enforceability. Not only does Article 31 require the decision to be given without delay, but the decision must then be notified, again without delay, to the applicant. Under the Commission’s 2016 Proposal, the declaration of enforceability would disappear and this Article would have no equivalent in the recast Regulation. 2 This Article is the equivalent of Article 24 of the 1998 Convention and of Article 25 of

Council Regulation 1347/2000, derived in turn from Article 35 of the Brussels Convention 1968.

1 2 3

4

330

Thessaloniki District Court, (Case 511/1994), Harmenopoulos (1994), 1409. Report Jenard, OJ 1979 C 59/1 at p. 50. See Banca Pinto & Sotto Mayor SA v. Santos Portela (Coimbra CA, 17 December 1995), Colectânea de Jurisprudência (1995) t. IV, 35 (failure to produce documents not a reason for refusal). Re M. (a child) (jurisdiction: foreign contact order) (2003) EWHC 2974 (Fam).

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Chapter III: Recognition and Enforcement

Article 33

The duty to notify the applicant is placed on the ‘appropriate officer’ of the court. The 3 identity of this officer and the form in which and the method by which the decision is to be notified are matters for the national law of the Member State in which enforcement was sought. The usual expectation is that the officer will use the address for service notified under Paragraph 2 of Article 30. There is no duty to notify any other party. The party against whom enforcement is sought 4 may well only discover the facts when steps are taken in accordance with Article 47, Paragraph 1, to enforce the judgment. This has implications for the operation of the provisions in the following Articles as to appeals. Article 33: Appeal against the decision 1. The decision on the application for a declaration of enforceability may be appealed against by either party. 2. The appeal shall be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68. 3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters. 4. If the appeal is brought by the applicant for a declaration of enforceability, the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 18 shall apply. 5. An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. No extension of time may be granted on account of distance.

Bibliography Arenas García, Problemas derivados del sistema de recursos previsto en el Convenio de Bruselas, AEDIPr 2001, 868 de Cristofaro, Presupposti e remedi per il provvedimento che “sospende” il opposizione all’exequatur e il riconoscimento di sentenza comunitaria, RDIPP 1998, 745 Cypra, Die Rechtsbehelfe im Verfahren der Vollstreckbarerklärung nach dem EuGVÜ (München 1996) Geimer, Das EuGVO-Beschwerdeverfahren an der Schnittstelle von europäischem Gemeinschaftsrecht und nationalem Recht, IPRax 2003, 337 Hau, Zum Rechtsschutz gegen die Vollstreckbarerklärung gemäß Art. 36 bis 38 EuGVÜ, IPRax 1996, 322

Peter Mankowski

Hess, Die Unzulässigkeit materiellrechtlicher Einwendungen im Beschwerdeverfahren nach Art. 33 ff. EuGVVO, IPRax 2008, 25 Lupinetti, Motivi ostativi all’exequatur di sentenza straniera secondo la Convenzione di Bruxelles del 27 settembre 1968, on dedotti con l’atto di opposizione ex art. 36 stessa Convenzione, Dir. mar. 98 (1996), 1001 Mankowski, Gläubigerinteressen und Grundsatz des kontradiktorischen Verfahrens bei der Beschwerde im Vollstreckbarerklärungsverfahren, IPRax 2004, 220 Sánchez Sánchez-Crespo, Reflexiones sobre la sistemática de los recursos en el reglamento nº 44/2001 relativo a la competencia judicial, reconocimiento y

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ejecucíon de resoluciones judiciales en materia civil y mercantil, La Ley 6489 (24 de mayo de 2006), 1

Rolf Stürner, Rechtliches Gehör und Klauselerteilung im Europäischen Vollstreckungsverfahren, IPRax 1985, 254.

I.

III.

II.

Generalities 1. Progeny and aim . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Aggrievement as basic requirement . . . 3 3. Conclusive nature as to the existence of a right to appeal . . . . . . . . . . . . . . . . . . . . . . 4 4. Genuine third parties’ rights to appeal? 5 5. Object of the appeal . . . . . . . . . . . . . . . . . . . . . 11 6. Appeals against measures of enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Procedure 1. Competence, (2) . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. Contradictory nature, (3) . . . . . . . . . . . . . . . 18 3. Summons to appear and subsequent lack of appearance, (4) . . . . . . . . . . . . . . . . . . 28

IV.

Time limit, (5) 1. Time limit for appeal against declaration of enforceability by the person against whom recognition is sought . . . . . . . . . . . . 33 a) Requirements for service . . . . . . . . . . . . . . . . 34 b) Differentiation based on the situs of the respondent’s habitual residence . . . . 36 2. Appeal against the refusal to grant a declaration of enforceability . . . . . . . . . . . . 41 3. Appeal against declaration of enforceability, or against the refusal to grant a declaration of enforceability, by a third party . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

I. Generalities 1. Progeny and aim 1 Art. 33 (with the exception of (4)) mirrors Art. 43 Brussels I Regulation and comprises the

substance of Arts. 36–40 Brussels Convention, or more precisely: the content of Arts. 36; 37 (1); 40 Brussels Convention. It is not a novelty at all but imports a time-honoured and wellbalanced system. In a more general context, the option to have an appeal against a positive declaration of enforceability is necessary and vital in order to avoid a fatal clash with Art. 6 Human Rights Convention which would be violated if the debtor did not have such option. Appealability after a one-sided procedure is required in order to safeguard established human rights standards and in particular the right for a fair trial. Systematically, Art. 33 is intrinsically linked with Art. 22 and provides the vehicle for that rule to operate in the context of enforcement procedures. Irony has it that after the abolishing of exequatur proceedings in the Brussels Ibis Regulation there is not a counterpart under the Brussels Ibis regime anymore, the initial copycat being the sole survivor. Arts. 33 et seq. provide a comprehensive special procedure.1 They apply only with regard to exequatur proceedings, but not with regard to enforcement as such, the opportunities to appeal in the latter are governed by the lex loci executionis.2 2 But Art. 33 does not apply to the debtor’s appeal exclusively, but also embraces the creditor’s

appeal against a decision denying a declaration of enforceability. It is a basic feature of Art. 33 that one has to distinguish very clearly and very carefully between these two scenarios, i.e. who is appealing against which kind of decision.

1 2

332

Hüßtege, in: Thomas/Putzo, Art. 33 note 1; Hausmann, J note 166. See only Hausmann, J note 166.

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Chapter III: Recognition and Enforcement

Article 33

Due to Arts. 40 (1) (a), (b); 41; 42 Arts. 33–35 are believed not to be applicable where 2a judgments issued in accordance with Section 4 of Chapter III, i.e. judgments on rights on access or return of a child may be declared enforceable by the court of origin irrespective of any possibility of appeal, whether in the Member State of origin or in that of enforcement.3 2. Aggrievement as basic requirement A right to appeal requires, and is dependent on, the appealing party’s being aggrieved by the 3 decision at first instance. He who got what he asked for, cannot appeal. Hence the debtor can appeal insofar as the court of first instance granted a declaration of enforceability, and in turn the creditor can appeal only insofar as the court of first instance denied a declaration of enforceability. It is not necessary, though, that the aggrievement is spelled out in further detail since it will be evident from the decision at first instance in any case. 3. Conclusive nature as to the existence of a right to appeal The debtor’s appeal does not carry a dilatory or suspensory effect per se as Art. 35 unequi- 4 vocally evidences. Besides and other than Art. 33, there are no means or opportunities to appeal. National law is not called upon and does not have any say in this regard. Art. 33 is of an exclusive, conclusive and exhaustive nature as to rights to appeal. Either a right to appeal lies under Art. 33, or there will not be any such right. Yet this nature extends only to the existence of appeal procedures whereas such details of the procedure which are not dealt with specifically by Art. 33 are governed by the national law of the State where the exequatur is sought after.4 (3) carries such implication, but the hierarchy of rules requires to give precedence to (3) and (4) insofar as they regulate certain issues.5 Another important restriction to be respected is that Art. 31 (2), (3) are applicable at the appeal stage, too.6 Any objections based on reasons of substantive law are excluded.7 A change of circumstances in the life of the child concerned might trigger a reversal or an alteration of the decision in the state of origin but not a refusal of enforcement.8 Yet the court at appeal might still question as to whether the formalities for an enforcement procedure are complied with.9 They are cumulative to Art. 31 (2), (3).

3

4 5 6

7

8 9

Inga Rinau (Case C-195/08 PPU), [2008] ECR I-5271 para. 84; Health Service Executive v. AC and SC (Case C-92/12 PPU), ECLI:EU:C:2012:255 para. 128; A-G Kokott, ECLI:EU:C:2012:177 para. 72. Paraschas, in: BBGS Art. 33 note 5 (2005); Arnold, in: Althammer, Art. 33 notes 1, 4. Arnold, in: Althammer, Art. 33 note 4. Andrae, in: Nomos Kommentar BGB, Art. 33 note 7; Arnold, in: Althammer, Art. 33 note 12; Hausmann, J note 181. Hausmann, J notes 182a-185; see also Prism Investments BV v. Jaap Anne van der Meer (Case C-139/10), [2011] ECR I-9511 paras. 27–43; OLG Oldenburg NJW-RR 2007, 418; Hess, IPRax 2008, 25; Martiny, FamRZ 2008, 1681, 1688; Mankowski, in: Rauscher, EuZPR/EuIPR, vol. I (3rd ed. 2011) Art. 45 Brüssel I-VO notes 4–7; Rolf Wagner, IPRax 2012, 326. Hausmann, J note 186. See BGH NJW-RR 2008, 586; Geimer, in: Geimer/Schütze, Art. 33 notes 7–8; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 45 Brüssel I-VO note 3. Contra Hausmann, J note 187.

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4. Genuine third parties’ rights to appeal? 5 The conclusive nature also restricts a right to appeal to parties in the formal sense and

excludes an appeal by a genuine third party or an interested state body since Art. 33 vests a right to appeal only in formal parties at first instance. Any formal party may appeal, not only applicant and respondent, or more precisely in the present context of enforceability: creditor and debtor.10 6 (1) is unequivocal insofar as genuine third parties who have not participated, and enjoyed a

role as formal parties, in the proceedings at first instance are not allowed to appeal, and (5) is particularly ill-fitting if the decision of first instance is not served upon the interested state body hypothetically appealing. Arguably, the conclusion from the wording of (1) is less convincing and less stringent since this wording appears to be basically a copy and paste operation from Art. 43 (1) Brussels I Regulation where problems with state bodies involved are not likely to occur. As to substance, if rights to appeal were granted to third parties it would be necessary to circumscribe the category of third parties which were so blessed. Such material criteria are lacking, and even if they could be discerned in a sufficiently authoritative manner such approach would diminish legal certainty at least compared to a strict approach relying on formal position. 7 Interested state bodies do not have extra rights, accordingly. They might not have been in a

position to participate in the original proceedings. Thus they do not have a formal, but only a material interest in the decision. They are not aggrieved in the formal sense if a declaration of enforceability is granted or denied. Hence, they lack the essential requirement. They might be materially affected but their formal position is not diminished.11 8 The position of state bodies, other institutions or third parties might possibly be protected at

the level of actual enforcement by the means provided by the law of the state where enforcement is sought. Nonetheless, it is far less likely in the rather restricted context of enforceability under the Brussels IIbis Regulation than under the Brussels I Regulation that any other person or institution than debtor or creditor is affected but for the child. The child does not own a personal right of appeal but is deemed to be represented the more so since and insofar as the child has not been privy, and party, to the original proceedings, either,12 unless it has been the applicant. If the child has been the applicant the child, of course, has every right and is entitled to any step like an adult applicant. The same applies mutatis mutandis to parents who have not been formal parties at first instance.13 9 The entire structure of the enforceability proceedings is bilateral if any. Art. 33 is modelled

after Art. 43 Brussels I Regulation, and under Art. 43 Brussels I Regulation it was unan10 11

12

13

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Paraschas, in: BBGS Art. 33 note 4 (2005); Rassi, in: Fasching/Konecny, Art. 33 note 7. Rauscher, in: Rauscher, Art. 33 note 4; tentatively also Hausmann, J note 167. Contra Andrae, in: Nomos Kommentar BGB, Art. 33 note 3. Contra Rolf Wagner, IPRax 2001, 73, 80; Gördes, Internationale Zuständigkeit, Anerkennung und Vollstreckung von Entscheidungen über die elterliche Verantwortung (2004) p. 91; Arnold, in: Althammer, Art. 33 note Hausmann, J note 167; Arnold, in: Althammer, Art. 33 note 2; Andrae, in: Nomos Kommentar BGB, Art. 33 note 3; Hüßtege, in: Thomas/Putzo, Art. 33 note 1; Geimer, in: Zöller, Art. 33 note 2. Contra Arnold, in: Althammer, Art. 33 note 2.

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imously recognised14 and amply decreed by the ECJ that third parties do not have an own right to appeal even if such right would be provided for the national law of the state where enforcement is sought.15 That in the present context the by-standers might be state bodies or public institutions does not support an entirely and generally different evaluation. The case might be different if the child or state bodies enjoy an independent formal position 10 of their own the proceedings at first instance, though. If they formally participate in these proceedings they can be said to be a formal “party”. They are privy to the proceedings. If the child or any state body participates not in the proceedings at first instance but in the original proceedings the case would be different yet again. The state where a declaration of enforceability is sought is bound by different rules and might or might not grant different positions and rights to those involved, but might not credit them with the formal position of parties. 5. Object of the appeal Object of the appeal is the final decision of the court of first instance. Interim decisions, 11 interim orders, injunctions or orders for evidence are not subject to an appeal under Art. 33.16 They might be appealed against under the specific rules governing them respectively. 6. Appeals against measures of enforcement As in general, the enforcement procedure as such is governed by national law. Art. 33 is 12 concerned with decisions in the previous procedure for a declaration of enforceability exclusively. Which rights of appeal might lay and under which prerequisites against single measures of enforcement is a matter for the national law of the state where such enforcement is sought after. II. Procedure 1. Competence, (2) As the Brussels IIbis Regulation in general refrains from extending the wording of single 13 Articles by adding lists of specified courts, Art. 33 also employs the technique of referring to an external list. Unlike the combination of Art. 43 and Annex III Brussels I Regulation, the respective list is not an official Annex to the Brussels IIbis Regulation. This allows for altering competence or name of the court ad quem in single Member States without having to alter an Annex on the level of Community law subsequently and with exceptional cost. The list of courts notified by the Member States is available under http://ec.europa.eu/justice 14 _home/judicialatlascivil/html/pdf/manual_cv_en.pdf. At present this list asserts that the appeal provided for by Article 33 shall be lodged with the following courts: 14

15

16

Ample references in Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 3. Deutsche Genossenschaftsbank v. Brasserie du pêcheur SA (Case 148/84), [1985] ECR 1981, 1992 para. 17; Volker Sonntag v. Hans Waidmann (Case C-172/91), [1993] ECR 1993, I-1963, I-2000 para. 33; Draka NK Cables Ltd. v. Omnipol Ltd. (Case C-167/08), [2009] ECR I-3477, I-3488 et seq. paras. 27–30. Paraschas, in: BBGS, Art. 33 note 3 (2005); Arnold, in: Althammer, Art. 33 note 1.

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– in Austria, the ‘Bezirksgericht’, – in Belgium, (a) a person applying for a declaration of enforceability may lodge an appeal with the cour d’appel or the hof van beroep. (b) the person against whom enforcement is sought may lodge opposition with the tribunal de première instance/rechtbank van eerste aanleg/erstinstanzliches Gericht, – in the Czech Republic, the ‘okresní soud’, – in Cyprus, the Family Court of Second Instance, – in Estonia, the ‘ringkonnakohus’, – in Finland, the Hovioikeus/hovrätt, – in France, the ‘Cour d’appel’, – in Germany, the ‘Oberlandesgericht’, – in Greece, the ‘Εφετείο’, – in Hungary, the ‘megyei bíróság’; in Budapest, the ‘Fővárosi Bíróság’, – in Ireland, the High Court, – in Italy, the ‘Corte d’appello’, – in Latvia, the ‘Apgabaltiesa’(Regional court), – in Lithuania, the ‘Lietuvos apeliacinis teismas’ (Court of Appeal), – in Luxembourg, the ‘Cour d’appeal’, – in Malta, the ‘Qorti ta’ l-Appell’ (Court of Appeal) in accordance with the procedure laid down for appeals in the Kodiċi tal-Organizzazzjoni u Proċedura Ċivili – Kap.12, – in the Netherlands, the rechtbank, – in Poland, the ‘Sądy apelacyjny’ (appellate courts), – in Portugal, the Tribunal da Relaçāo, – in Romania, enforceability must be lodged with the court of appeal (Article 3 of the Civil Procedure Code), – in Spain, the ‘Audiencia Provincial’. Actions for annulment (Articles 317 and 318 of the Civil Procedure Code) and review (Article 322 of the Civil Procedure Code) must be lodged with the court whose decision is being contested or the court which handed down the final decision review of which is being requested: – in Slovenia, the okrožno sodišče, – in Slovakia, the Okresný súd, – in Sweden, the ‘Svea hovrätt’, – in the United Kingdom: (a) in England and Wales, the High Court of Justice – Principal Registry of the Family Division, (b) in Scotland, the Court of Session, Outer House, (c) in Northern Ireland, the High Court of Justice, (d) in Gibraltar, the Supreme Court of Gibraltar. 15 (2) has to be applied ex officio. The competence and jurisdiction granted by (2) is exclusive.

No other court in a Member State shall hear an appeal. If and insofar as any party lodge an appeal with another court this other court is bound to transfer the appeal case to the correct court listed by any means the national law provides.

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The court of first instance is not involved in the appeal proceedings. In particular, it is 16 neither required nor possible that the court of first instance as such is called upon to rectify or revoke its decision. The court of first instance does not even have any competence to revoke. It has uttered its final word by rendering its decision, and does not have any say henceforth. In principle, the appeal elevates the case to another instance17 and exerts a divestive effect as to the court of first instance. Whether (2) is complied with, i.e. whether the appeal has been lodged with the competent 17 appellate court is to be examined on the court’s own motion ex officio.18 (2) vests exclusive jurisdiction in the appellate courts designated by the Member States. If an appeal has been lodged with a court not so designated this court has to transfer the case to the competent court in the same State, using the rules on procedural transfer of the respective lex fori. 2. Contradictory nature, (3) (3) unequivocally establishes the contradictory nature of the appeal proceedings. National 18 law is not to interfere with this order by the Regulation and has only to provide the executory means. The framework insofar clad in the iron of EU legislation is provided by (3)-(5),19 possibly modifying national rules but in principle (3) relates to national law for providing the details. The Regulation does not establish an own full-fledged regime with numerous details but borrows, and accepts the auxiliary hand, from existing national systems. National rules serve as a kind of gap-fillers, but the gaps to be filled are huge. The effet utile of 19 (3) is to be taken into account when applying and interpreting rules of national law, though. National law is not entitled to impose restrictions which would be irreconcilable with a genuine contradictory nature. Yet national law might for instance impose time limits for a written reply by the respondent 20 in the appeal proceedings.20 Likewise, national law is at liberty as to whether it opts for written proceedings or oral procedure or any combination of oral and written elements if only fair trial is observed.21 “Contradictory” means that either party must have the opportunity to participate. The 21 potential to participate and to be heard by the appellate court is what matters. Whether such potential has been activated by the respective parties in a concrete case is irrelevant. “Contradictory” has to be understood autonomously and must not be pressed into any concept which the national law provides.22

17

18 19

20 21

22

See OLG Zweibrücken NJOZ 2004, 785, 786; OLG Zweibrücken NJOZ 2005, 2044, 2045; OLG Zweibrücken InVo 2005, 428, 429. See Rb. Arnhem NIPR 2005 Nr. 165 p. 228. Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 7; Hausmann, J note 177. Rassi, in: Fasching/Konecny, Art. 33 note 21. Mankowski, IPRax 2004, 220, 223; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 6b. Arnold, in: Althammer, Art. 33 note 7.

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21a Even if not a party in the formal sense to the proceedings at first instance the child should be

heard, too. Its interests ought to have centre stage, and the child should be interviewed as to which his or her interests are. Recital (19) states that the hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable. This ought to be respected in the appeal proceedings, too.23 Insofar as Recital (19) refers to national law, this implies only that the details of how the child should be heard are left to national law.24 At the very least Art. 31 (3) should not apply in appeal proceedings.25 22 The ratio underlying (3) is to guarantee that each party concerned has the fair opportunity to

exercise its right for a fair trial and that the second instance will not decide as the only instance reviewing the case without listening to the respondent’s arguments if the applicant is the party appealing.26 Accordingly, the appeal proceedings are proceedings de novo.27 23 The surprise effect which the applicant might intend to gain from the declaration of en-

forceability contrasts to, and collides with, rights to participate on the respondent side. Yet (3) unambiguously tosses the dice in the respondent’s favour. Any surprise effect must cede, and give way, to the respondent’s right for a fair trial.28 This is particularly unfavourable (but not unfair) to the applicant if he lost at first instance only because he failed to produce relevant documents which he now subsequently could produce.29 If the national law of the forum state so allows dismissing the applicant’s appeal and referring the case back to first instance might be discussed as an alternative30 but would nevertheless be for the wrong, creditor-oriented reasons.31 24 The applicant could possibly be better advised to leave it at that in the present proceedings

but to lodge a second application opening a new set of proceedings in order to keep the surprise effect if he is prepared to internalise the costs of the frustrated first proceedings.32 25 If the appeal is evidently and beyond reasonable doubt untenable on its own face it could be

regarded as a waste of resources to implement full contradictory proceedings instead of dismissing the appeal without hearing the respondent in the appeal proceedings. A bold step

23 24 25 26

27

28

29 30 31

32

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Arnold, in: Althammer, Art. 33 note 6. Arnold, in: Althammer, Art. 33 note 6. Rauscher, in: Rauscher, Art. 33 note 15. Stürner, IPRax 1985, 254; Rassi, in: Fasching/Konecny, Art. 33 note 17; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 8. Rassi, in: Fasching/Konecny, Art. 33 note 23; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 8. See Firma P v. Firma K (Case 178/83), [1984] ECR 3033, 3041 et seq. paras. 8–12; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 10. Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO notes 9–10. OLG Düsseldorf RIW 2003, 622 = IPRax 2004, 251; Rolf Stürner, IPRax 1985, 254, 255 et seq. Mankowski, IPRax 2004, 220, 223; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 10a. Zerr, in: BBGS, Art. 43 EuGVVO note 37 (2005); Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 11b.

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to steer such course would be a teleological reduction of (3) in such cases for the sake of procedural economy and efficiency.33 (3) only applies to appeals in the exequatur proceedings. It is not applicable with regard to 26 appeals concerning an appeal against other decisions at first instance even if such appeal is formally combined with an appeal in the exequatur proceedings.34 The respondent in the appeal proceedings must not be rewarded for employing dilatory 27 tactics. In particular, he must not be allowed to allege that (3) has not been complied with if he does not submit any reply. Although nowhere in Art. 33 a time limit for such reply can be found as an autonomous means, national law can establish a respective time limit.35 3. Summons to appear and subsequent lack of appearance, (4) If the appeal is brought by the applicant for a declaration of enforceability, by virtue of (4) 28 the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 18 shall apply. (4) in its present shape and wording is some kind of genuine novelty and has no exact counterpart in the Brussels I system as it transcends Art. 43 (4) Brussels I Regulation.36 The novel element is the duty imposed upon the court to summon the respondent to appear. This is mainly due to the unilateral structure of the exequatur proceedings at first instance.37 The general idea underpinning (4) is to draw the respondent into the contradictory pro- 29 ceedings at second instance even if he in substance has won at first instance. The idea is explicable only if one keeps in my mind that the exequatur proceedings at first instance are unilateral and that the respondent does not participate in them. The specific summons indicates that he should join the proceedings at second instance in order to defend his windfall success. If he does not abide to the court’s call and does not appear he will only enjoy such minimum protection as is granted by Art. 18: The court will only check whether he was properly served upon. Insofar the responsibility for improper service rests with the court or the applicant as the case may be, and the respondent is excused for not entering an appearance. But if he was properly served and thus had the necessary information to trigger activity he is held responsible for his lack of appearance. (4) does not become operative if the exequatur was granted at first instance as in that event 30 the proper service of the exequatur and the original decision on the respondent is mandatory and as only the respondent could lodge an appeal.38 There will not be a second instance but for specified activity on the respondent’s side.

33

34 35 36 37 38

Mankowski, IPRax 2004, 220, 222; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 11a. Rassi, in: Fasching/Konecny, Art. 33 note 19 with reference to OGH 3 Ob 28/05x. Rassi, in: Fasching/Konecny, Art. 33 note 21. Contra Rauscher, in: Rauscher, Art. 33 note 16. Arnold, in: Althammer, Art. 33 note 9. Rauscher, in: Rauscher, Art. 33 note 17.

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31 In matters of parental responsibility, (4) should be applied per analogiam if the declaration

of enforceability was denied at first instance and not the applicant, but an entitled third party, particularly the child, lodges the appeal for in such cases fair trial demands a proper opportunity for the respondent to be heard as if the applicant had appealed.39 32 Unlike Art. 43 (4) Brussels I Regulation, (4) does not expressly state in its wording that it

applies even if the respondent is resident outside the EU. But as this would only be a declaratory affirmation no argumentum e contrario should be drawn from the lack of such statement. Conversely, it should be paramount that (4) does not contain any express limitation that its application is restricted to respondent residents in Member States. III. Time limit, (5) 1. Time limit for appeal against declaration of enforceability by the person against whom recognition is sought 33 Following Art. 43 (5) Brussels I Regulation, (5) establishes a time limit for an appeal against a

declaration of enforceability: An appeal against a declaration of enforceability must in principle be lodged within one month of service thereof. Yet if the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. Accordingly, the watershed is where the party against enforcement is sought is habitually resident. a) Requirements for service 34 Under (5) 1, time begins to run against the respondent after the declaration of enforceability

has been properly served upon him. What constitutes proper service ought to be judged by the yardsticks of the internal law of the State of the respondent’s habitual residence40 which here is identical with the State where the exequatur proceedings are staged. In these cases, service is a domestic matter for that State. The service must convey sufficient information to enable the respondent to mount an effective defense but is not required to contain express reference to the possibility and the particularities of appeal proceedings.41 35 Formal service is not mandatory outside the second sentence.42 Every proper service will

suffice for the purposes of cl. 1.43 On the other hand it is not enough if the respondent acquires factual knowledge, or the document at stake is brought to the respondent’s notice, by whichever means.44 This follows i.a. from the contrast of the two notions of ‘service’ on 39 40

41

42

43 44

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Rauscher, in: Rauscher, Art. 33 note 18. See Report Jenard Art. 36 (2); Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 15; Hausmann, J note 171. See App. Milano RDIPP 1999, 102, 104; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 15. A-G Kokott, [2006] ECR 1581, 1591 para. 51; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 15. Mankowski, in: Rauscher, Art. 43 Brüssel I-VO note 15. Gaetano Verdoliva v. Van der Hoeven BV (Case C-3/05), [2006] ECR I-1579, I-1605 para. 31; A-G Kokott, [2006] ECR 1581, 1591 para. 52.

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the one hand and ‘brought to the notice’ on the other hand in Arts. 35; 36 Brussels Convention45 and consequentially in the two paragraphs of Art. 42 Brussels I Regulation. The requirement that the decision authorising enforcement be served has a dual function: on the one hand it serves to protect the rights of the party against whom enforcement is sought and, on the other hand, it allows, in terms of evidence, the strict and mandatory time-limit for appealing to be calculated precisely.46 If the sole issue were whether the document authorising enforcement came to the attention of the party against whom enforcement is sought that would tempt applicants to ignore the prescribed modes of due service and would make the exact calculation of the time-limit more difficult, thus thwarting the uniform application of the Brussel IIbis regime.47 Yet within the limits imposed by the overall and paramount goal of preserving the effet utile of the Brussels IIbis regime, national law determines under which conditions an infringement of individual provisions concerning service can be cured and effective service is still achieved.48 b) Differentiation based on the situs of the respondent’s habitual residence If the party against whom enforcement is sought, is habitually resident not in the Member 36 State of the exequatur proceedings but in another Member State, (5) 2 extends the time limit to two months and establishes another starting point, namely service on that party or at that party’s residence. Any other service will not trigger the time limit. A default rule establishing a second time limit running from the time when the declaration of enforceability is given does not exist. In general, under (5) 2 service has to be effected in accordance with the Service Regulation. 37 Yet the specific ramifications of (5) 2 have to be observed, too. Only service on the person against whom enforcement is sought, in personam or at that very person’s residence is sufficient. Service at the residence means physical delivery to any person present there who is legally entitled to receive documents on the respondent’s behalf, or subsidiarily to the competent authorities.49 Public service or service by remise au parquet are excluded.50 By virtue of (5) 3, no extension of time may be granted on account of distance. Extensions for 38 other reasons may be granted according to the national law of the State of the exequatur proceedings, though.51 (5) 3 is only applicable in the cases covered by (5) 2, not by (5) 1 as

45

46

47

48 49 50

51

Gaetano Verdoliva v. Van der Hoeven BV (Case C-3/05), [2006] ECR I-1579, I-1605–1607 paras. 31, 34– 38; A-G Kokott, [2006] ECR 1581, 1591 et seq. para. 54. Gaetano Verdoliva v. Van der Hoeven BV (Case C-3/05), [2006] ECR I-1579, I-1606 paras. 34–35; A-G Kokott, [2006] ECR 1581, 1592 para. 56. Gaetano Verdoliva v. Van der Hoeven BV (Case C-3/05), [2006] ECR I-1579, I-1606 et seq. paras. 36 et seq. with reference to Isabelle Peters v. Lancray SA (Case C-305/88), [1990] ECR I-2725, I-2751 para. 20. A-G Kokott, [2006] ECR 1581, 1593 et seq. paras. 59–62. Report Jenard Art. 36 comment 1. Cypra, Die Rechtsbehelfe im Verfahren der Vollstreckbarerklärung nach dem EuGVÜ (1996) p. 32; Haß, in: BBGS, Art 36 EuGVÜ note 8 (2000); Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 18. Kodek, in: Czernich/Tiefenthaler/Kodek, Europäisches Gerichtsstands- und Vollstreckungsrecht (3rd ed. 2011) Art. 43 EuGVO note 19; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 16.

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can be deduced from the German wording (“dieser Frist”) and its legislative history which commenced as second clause of Art. 36 (2) Brussels Convention.52 39 If the party against whom enforcement is sought is not resident in any Member State but in a

Third State outside the EU, (5) 2 is not applicable but only 5 (1) reigns.53 The shorter time limit applies in spite of the longer distances and the greater risks in communication. Service should be effected pursuant to the Hague Service Convention if the respondent is resident in a Contracting State of that Convention, else according to bilateral treaties between the State of the exequatur proceedings and the State of the respondent’s habitual residence, lastly following the national rules State of the exequatur proceedings for service abroad.54 40 If the party against whom enforcement is sought is not resident in any Member State but in

Denmark service is a matter of the Bilateral Treaty between the EU and Denmark on Service55 mirroring the Service Regulation. The extension of the EU standards for service abroad alone does not justify to treat Denmark like a Member State of the Brussels IIbis Regulation, not the least since a bilateral EU-Denmark Treaty extending the Brussels IIbis regime does not exist nor has been seriously considered to the present day. 2. Appeal against the refusal to grant a declaration of enforceability 41 (5) is not comprehensive. Conversely, it addresses only part of the overall picture and

imposes a time limit only for an appeal to be lodged against a declaration of enforceability by the person against whom enforcement is sought. There is nothing like a time limit for an appeal by the applicant against the refusal to grant a declaration of enforceability. Hence, the applicant is under no formal restrictions and can lodge an appeal after reasonable time he needs to reconsider the matter and the auspices of success taking advice or attempting at getting documents he might have lacked previously.56 That (5) does not impose a time limit in this regard establishes an argumentum e contrario and inhibits national from implementing a time bar although on the other hand national law is called upon to fill gaps in the Regulation.57 At least the Austrian legislator took the view that national law is at liberty to 52

53

54

55

56

57

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Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 17; Hausmann, J note 175. See only Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 17. But cfr. § 24 (3) pt. (2) IntFamRVG in Germany and Arnold, in: Althammer, Art. 33 note 14. Cypra, Die Rechtsbehelfe im Verfahren der Vollstreckbarerklärung nach dem EuGVÜ (1996) p. 51; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 17. OJ EU 2005 L 300/55 and the Note by Denmark on the application of Regulation (EC) No. 1393/2007 in substance, OJ EU 2008 C 115/353. Report Jenard Arts. 40, 41; Andrae, in: Nomos Kommentar BGB, Art. 33 note 5; Dörner, in: Handkommentar ZPO, Art. 33 note 5. Tentatively contra Hausmann, J note 176. Rolf Wagner IPRax 2001, 80; Dornblüth p. 85; Paraschas, in: BBGS Art. 33 note 7 (2005); Gottwald, in: Münchener Kommentar zur ZPO Art. 33 note 5; Schlosser Art. 26 note 2; Rauscher, in: Rauscher, Art. 33 note 1; Hüßtege, in: Thomas/Putzo, Art. 31 note 8; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 20; Arnold, in: Althammer, Art. 33 note 16. For a competence of national law to constitute a time limit AppG Basel-Stadt BJM 1996, 142, 143; Geimer, in: Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed. 2010) Art. 43 EuGVVO note 49; Rassi, in: Fasching/Konecny, Art. 33 note 15.

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occupy the territory, and adopted a national time limit of one month in § 114 (3) Außerstreitgesetz. If there was no time limit at all uncertainty could be prolonged eternally, and other means like acting contra bonos mores might step in.58 3. Appeal against declaration of enforceability, or against the refusal to grant a declaration of enforceability, by a third party If one is prepared to admit an appeal against a declaration of enforceability, or against the 42 refusal to grant a declaration of enforceability, by a third party59 no time limit for such an appeal would be found in (5) the wording of which does not cover like appeals, but only an appeal by the person against whom enforcement is sought. This is hardly surprising taking into account that the wording has been copied from Art. 43 (5) Brussels I Regulation where third party appeals may not occur. Under the said premise, two alternative ways of thinking appear feasible: firstly to apply (5) 43 per analogiam to such appeals by third parties, or secondly to leave it to the national law of the State where the exequatur proceedings take place to provide for a solution. The first option has to struggle insofar as the respective decision of the court at first instance might not have been served on the third party appealing so that consequentially the proper starting point for the time limit would be unclear. IV. Effect Generally, the decision on appeal becomes effective when it cannot be further appealed 44 against, i.e. when it becomes a res iudicata in the formal sense.60 Yet in order to ensure that the requirement under Art. 31 that there be no delay cannot be undermined by the suspensive effect of an appeal brought against a decision on a declaration of enforceability it is appropriate that a placement order is to become enforceable at the point in time when the court of the requested Member State declares, in accordance with Art. 31, that this order is enforceable.61 The best interests of the child as to be judged in the light of Art. 24 Charter of Fundamental Rights may require, in cases of cross-border placement where there is exceptional urgency, that there should be available a flexible solution as regards the length of the procedure of recognition for enforcement, if, where such a solution not to be available, the passage of time would jeopardise the underlying objective of the jugdment ordering the placement.62 In order not to deprive the Brussels IIbis Regulation of its effectiveness, the decision on enforceability must be taken with particular expedition, and appeals brought against such a decision must not have suspensive effect.63 Particular urgency serves as the

58

59 60 61 62 63

Geimer, in: Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed. 2010) Art. 43 EuGVVO note 49; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 43 Brüssel I-VO note 20. See the discussion supra Art. 33 notes 5–10 (Mankowski). Hausmann, J note 189. Health Service Executive v. AC and SC (Case C-92/12 PPU), ECLI:EU:C:2012:255 para. 125. Health Service Executive v. AC and SC (Case C-92/12 PPU), ECLI:EU:C:2012:255 para. 127. Health Service Executive v. AC and SC (Case C-92/12 PPU), ECLI:EU:C:2012:255 paras. 129, 133.

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justification64 although this might lead to (undesirable) fait accomplis.65 The CJEU backs such reasoning with a reference to provisional measures under Art. 20.66 Article 34: Courts of appeal and means of contest The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each Member State to the Commission pursuant to Article 68.

I. Purpose and aim 1 Art. 34 is the direct successor of Art. 27 Brussels II Regulation. It resembles, and is modelled

after, Art. 44 Brussels I Regulation which in turn is based essentially on Arts. 36; 40 Brussels Convention. Its main purpose is to reduce further means of appeal against an appellate decision to an appeal in cassatione, i.e. on limited grounds and on grounds of law only. Of particular importance is the exclusion of any further means of appeal which would be based on grounds of fact. A comprehensive appeal in the ordinary sense is not permitted. The paramount aim and goal pursued is the rapidity of enforcement procedures. Acceleration is the maxim. He who has lost in the State of origin already shall get not too many chances to challenge the outcome in the State of enforcement. Ever renewed appeals would give an opportunity to prolong and to delay the overall procedure sacrificing effectiveness. 2 Accordingly, Art. 34 is to be understood under a double limitative qualification: Not only is

the appeal provided for in Art. 34 the only procedural way to contest the judgment, in the Member State of destination, given on the appeal under Art. 33; but in addition, such final appeals are opere Regulationis limited to points of law only. Hence, any further appeal on points of fact or factual findings is ruled out by Art. 34.1 But as to the points of law which might be under review on appeal, there are no restrictions autonomously implemented by Art. 34. If national permits to appeal on points of procedural law (e.g. the pretense that a rule of procedural law has been violated) so be it.2 II. Appealable decision 3 The overall goal consequentially governs purposive interpretation even in detail. It leads to,

and results in, a restrictive interpretation. For instance, in order to be appealable a decision needs to be a final decision; a mere interim decision does not suffice to trigger Art. 34.3 In particular an order on taking evidence is less than required. 4 The exceptional character of the final appeal provided for by Art. 34 has been clearly under64 65 66 1 2 3

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A-G Kokott, ECLI:EU:C:2012:177 para. 101. A-G Kokott, ECLI:EU:C:2012:177 para. 100. Health Service Executive v. AC and SC (Case C-92/12 PPU), ECLI:EU:C:2012:255 paras. 130–131. OGH EvBl 2004/179; Rassi, in: Fasching/Konecny, Art. 34 note 8. Rassi, in: Fasching/Konecny, Art. 34 note 8. See only Paraschas, in: BBGS, Art. 34 note 2; Arnold, in: Althammer, Art. 34 note 2; Rauscher, in: Rauscher, Art. 34 note 2.

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lined by the ECJ. In Brennero v. Wendel 4 the ECJ found that the formal appeal “cannot be extended so as to enable an appeal in cassation to be lodged against a judgment other than that given on the appeal, for instance against a preliminary or interlocutory order requiring preliminary inquiries to be made”, or against a decision refusing a stay of execution.5 Only a final decision and not a mere interim decision may thus be subject to further appeal.6 The paramount goal of accelerating matters militates in favour of a narrow and restrictive interpretation of Art. 44.7 In particular any suspensory decision under Art. 35 cannot be appealed against under Art. 34.8 III. Lack of suspensory effect Furthermore the appeal in cassatione as such does not have a suspensory effect per se.9 Only 5 Art. 35 (1) might alleviate the debtor’s burden, and under rather limited circumstances only. IV. List of notified proceedings As the Brussels IIbis Regulation in general refrains from extending the wording of single 6 rules by adding lists of specified courts, Art. 34 also employs the technique of referring to an external list. Unlike the combination of Art. 44 and Annex IV Brussels I Regulation, the respective list is not an official Annex to the Brussels IIbis Regulation. This allows for altering competence or name of the court ad quem in single Member States without having to alter an Annex on the level of EU law subsequently and with exceptional cost in a fullfledged procedure of EU legislation. This less formal technique is now also employed under the Brussels Ibis Regulation, advancing from the Brussels I Regulation. At present the list of proceedings notified by the Member States asserts that the appeal 7 provided for in Article 34 may be brought only: – in Austria, by a Revisionsrekurs, – in Belgium, France, Luxembourg by the pourvoi en cassation (by an appeal in cassation), – in the Czech Republic, ‘žaloba pro zmatečnost’, pursuant to § 229 and the following of the Act n°. 99/1963 Coll., (Civil Procedure Act), as amended and dolování pursuant to § 236 and the following of the Act n°. 99/1963 Coll., (Civil Procedure Act), as amended,

4

5

6

7

8

9

Calzaturificio Brennero s.a.s. v. Wendel GmbH Schuhproduktion International, (Case 258/83) (1984] ECR 3971, 3983 para. 15, and Operative part para. 2. See Cass. [1996] I.L.Pr. 504 para. 5, referring to B. J. van Dalfsen and others v. B. van Loon and T. Berendsen (Case C-183/90), [1991] ECR I-4743. Calzaturificio Brennero s.a.s. v. Wendel GmbH Schuhproduktion International (Case 258/83), [1984] ECR 3971, 3983 para. 15; SISRO v. Ampersand Software BV (Case C-432/93), [1995] ECR I-2269, I-2298 et seq. paras. 30–35; Schlosser, IPRax 1985, 321; Paraschas, in: BBGS Art. 34 note 2 (2005); Rauscher, in: Rauscher, Art. 34 note 2; Rassi, in: Fasching/Konecny, Art. 34 note 5; Hausmann, J note 190; Andrae, in: Nomos Kommentar BGB, Art. 34 note 1. SISRO v. Ampersand Software BV (Case C-432/93), [1995] ECR I-2269, I-2297 to I-2299 paras. 28–35 with further references; Hau, IPRax 1996, 322. SISRO v. Ampersand Software BV (Case C-432/93), [1995] ECR I-2269, I-2298 to I-2299 paras. 32–35; Hausmann, J note 190. Contra Rassi, in: Fasching/Konecny, Art. 34 note 7.

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– in Cyprus, for the purposes of Article 34, there is no provision for a third-level court redress procedure, – in Estonia, by ‘kassatsioonkaebus’, – in Finland, by an appeal to Korkein oikeus/högsta domstolen, – in Germany, by a ‘Rechtsbeschwerde’, – in Greece, by an appeal in cassation, – in Hungary, ‘felülvizsgálati kérelem’, – in Ireland, by an appeal on a point of law to the Supreme Court, – in Italy, Ricorso per cassazione, – in Latvia, ‘Augstākajā tiesa’ (an appeal to the Supreme Court), – in Lithuania, the Lietuvos Aukščiausiasis teismas (an appeal in Cassation to the Supreme Court), – in Malta, no existant in the national legal system, – in the Netherlands, the Rechtbank, – in Poland, by an appeal in cassation to the ‘Sąd Najwyższy’ (the Supreme Court), – in Portugal, by a recurso restrito à matéria de direito, para o Supremo Tribunal de Justiça, – in Slovenia, by a pritožba na Vrhovno sodišče Republike Slovenije, – in Slovakia, by a dovolanie, – in Spain, by an appeal in cassation, – in Sweden, by an appeal to the ‘Högsta domstolen’, – in the United Kingdom, by a single further appeal on a point of law: (a) in England and Wales, to the Court of Appeal. (b) in Scotland, to the Court of Session, Inner House. (c) in Northern Ireland, to the Northern Ireland Court of Appeal. (d) in Gibraltar, to the Court of Appeal. V. Further issues 8 The right to appeal should follow the same yardsticks as apply with regard to Art. 33.10 He

who endorses a third party’s right to appeal under Art. 3311 should consequentially feel obliged to argue to the same avail under Art. 34.12 He who refuses, and opposes, such temptation under Art. 33 should do the same under Art. 34. 9 Art. 34 implies a reference to the national law of the Member State where the appeal

proceedings take place, for the details of the procedure.13 A comprehensive EU codification on such issues does not exist, and Art. 34 does not even contain ramifications comparable to those as to be found in Art. 33. The lack of an express reference to national law does not constitute an insurmountable obstacle. In particular, national law is called upon to imple-

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Rassi, in: Fasching/Konecny, Art. 34 notes 4, 6. But contra Arnold, in: Althammer, Art. 33 note 3; Rauscher, in: Rauscher, Art. 34 note 2. See the discussion supra Art. 33 notes 5–10 (Mankowski). Paraschas, in: BBGS Art. 34 note 3 (2005); Rauscher, in: Rauscher, Art. 34 note 2; Rassi, in: Fasching/ Konecny, Art. 34 note 7. See Trib. Sup. AEDIPr 2004, 811; Trib. Sup. AEDIPr 2004, 813, 814; Arenas García, AEDIPr 2001, 868, 869; Fuentes Camacho, AEDIPr 2002, 602 et seq.; Carballo Piñeiro, AEDIPr 2004, 807; Mankowski, in: Rauscher, EuZPR/EuIPR, Vol. I (3rd ed. 2011) Art. 44 Brüssel I-VO note 3b.

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ment proper time limits.14 To apply Art. 33 (5) per analogiam would be too bold than it could possibly be a serious and viable alternative. Article 35: Stay of proceedings 1. The court with which the appeal is lodged under Articles 33 or 34 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin, or if the time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged. 2. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1. I. II. III.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conditions for granting a stay of proceedings (par. 1) 1. Appeal in the enforcement state . . . . . . . 5 2. Appeal or appealability in the judgment state . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Application for a stay of proceedings . . 11 4. Discretion in granting a stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. V.

5. Setting a period for appeal (par. 1 cl. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 6. Stay and enforcement under conditions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 7. Specific rule for British/Irish appeals (par. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8. Questions of proof . . . . . . . . . . . . . . . . . . . . . . . 21 Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

I. Contents and aim The Article deals with the problem of enforcement of still appealable judgments and pro- 1 vides a means to avoid the enforcement of a decision in the enforcement Member State which will not be upheld in the Member State where the decision was rendered. The provision orders that the problem be neglected on the first instance level but be recognised on the appeal level. It therefore requires the situation of a double appeal: an appeal in the enforcement (Member) State against a decision of this state which declared the foreign judgment enforceable and an appeal or still possible appeal in the judgment (Member) State. The appeal court in the enforcement state may then stay its proceedings and await the decision of the judgment state’s court or set a time limit for lodging such an appeal. On the one hand the provision aims at protecting the judgment debtor against possible dangers resulting from the enforceability of judgments which still can be or are appealed against in the state of origin. On the other hand, Art. 35 intends to avoid conflicting decisions, namely the enforcement of a decision in one Member State which will be quashed on appeal in another Member State.1 14 1

Layton/Mercer, European Civil Practice (2nd ed. 2004) para. 27.050. Cf. Report Borrás note 94 (with respect to the same provision of the projected Brussels II Convention which became the Brussels II Regulation); also Report Jenard p. 52 (with respect to the corresponding provision of the Brussels Convention); Andrae, in: Nomos Kommentar BGB I Art. 35 note 1; Dornblüth

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2 The same basic considerations underlie Art. 27 which is the parallel provision with respect to

the recognition of a foreign judgment covered by the Brussels IIbis Regulation.2 3 Art. 35 is part of the substantive law on appeal procedures3 which the Regulation – like the

Brussels Ibis Regulation – to a certain extent unifies among the Member States. As far as Art. 35 reaches, it replaces national provisions on stay of proceedings. II. Legislative history

4 Art. 35 had its verbally identical predecessor in Art. 28 Brussels II Regulation.4 An almost

identical provision is Art. 51 Brussels Ibis Regulation and also its predecessors Art. 46 (1) and (2) Brussels I Regulation and Art. 38 Brussels Convention while Art. 38 Brussels Ibis Regulation now merely requires that the judgment is challenged in the judgment state.5 III. Conditions for granting a stay of proceedings (par. 1) 1. Appeal in the enforcement state 5 The provision applies only where in the enforcement state an appeal is lodged either against

the decision of a court of that state declaring a foreign judgment enforceable (Art. 33) or against an appeal judgment concerning such a decision (Art. 34). The Article then entitles the court of appeal or even the court of third instance to stay the proceedings. The third instance’s entitlement can be seen as problematic because that instance will often review merely questions of law whereas the decision to stay may involve also questions of fact. But in order to avoid irreversible consequences of the enforcement of a still appealable judgment and to avoid conflicting judgments it appears justified that also the court of third instance can stay its proceedings (even if national law would not provide for such a possibility).6 6 On the contrary – and in contrast to Art. 27 – the court of first instance which grants the

enforceability decision is not entitled to stay its proceedings if the foreign judgment is or can be subject to appeal.7 The aim to facilitate and speed up enforcement and the excluded hearing of the person against whom enforcement is sought and of the child (Art. 31) excludes the possibility of this court to stay proceedings.8

2 3 4 5 6

7

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181; Kropholler/von Hein Art. 46 note 1 (with respect to the corresponding Article of the former Brussels I Regulation). See thereto the comment supra (McClean). In particular also Arts. 33 and 36. Only the numbers of the referred Articles varied. See thereto Wautelet, in: Magnus/Mankowski, Brussels Ibis Regulation (2016) Art. 38 note 9 et seq. Cf. the reasoning given by the Commission for the respective provision of the Draft Brussels I Regulation, COM 1999 (348) final p. 25. Gottwald, in: MünchKommZPO Art. 35 Brussels IIbis Regulation note 2; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 1; differently – if the judgment debtor indicated in advance that he or she will appeal ‘at home’, also the first instance in the enforcement state shall be entitled to stay proceedings – Rieck Art. 35 note 2. Cf. similarly Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 1.

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2. Appeal or appealability in the judgment state Art. 35 requires further an appeal or at least a possible appeal in the judgment state.9 The 7 actual or possible appeal in the state of origin must be an ‘ordinary appeal’. This autonomous term of European procedural law10 has the same meaning as in Art. 2711 and in Art. 51 Brussels Ibis Regulation. According to the jurisprudence of the CJEU already under the Brussels Convention an appeal is ordinary if it is part of the normal procedural process independent of facts or acts from outside, if it can lead to the annulment or amendment of the attacked judgment and if there is a specific time period set in motion by the release of the judgment after whose expiry the judgment can no longer be appealed against.12 This definition should be adopted also under the Brussels IIbis Regulation.13 It is however not necessary that the appeal has a suspensive effect on the enforceability of the attacked judgment.14 Thus the French or Italian appeal in cassation is an ordinary appeal15 while the German Wiederaufnahmeklage (annulment or restitution action) is not.16 Likewise, the possibility to attack a judgment under constitutional aspects before the national constitutional court would be no ordinary appeal.17 However, if an extraordinary appeal is already pending in the state of origin at the time when 8 the appeal in the enforcement state is lodged then the extraordinary appeal should be treated as if it were an ordinary appeal. The reason is that also in such a situation there is a threat of conflicting decisions which must be avoided. The appeal court in the enforcement state may therefore stay the proceedings also in this case.18 The mere existence of an extraordinary remedy of appeal which is not yet lodged does, however, not entitle the court to stay proceedings. 9

10

11 12

13

14

15 16

17 18

Gottwald, in: MünchKommZPO Art. 35 note 2; Hüßtege, in: Thomas/Putzo Art. 35 EheVO 2003 note 1; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 1. Cf. Industrial Diamond Supplies v. Luigi Riva (Case 43/77) (1977) ECR 2175, 2188 et seq. (on the corresponding provision of the Brussels Convention); cf. also Cuniberti/Rueda, in: Magnus/Mankowski Art. 51 Brussels Ibis Regulation note 10 et seq. (on the corresponding provision of the Brussels Ibis Regulation). Cf. also the comments to Art. 27 (Siehr). Industrial Diamond Supplies v. Luigi Riva (Case 43/77) (1977) ECR 2175, 2188 et seq. paras 32–41; cf. also Andrae, in: Nomos Kommentar BGB I Art. 27 note 2; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 153; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 27 note 4. Cf. also Andrae, in: Nomos Kommentar BGB I Art. 27 note 2; Kropholler/von Hein Art. 37 note 3; Paraschas, in: Geimer/Schütze Art. 27 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 27 note 4. In this sense Kropholler/von Hein Art. 37 note 3; Cuniberti/Rueda, in: Magnus/Mankowski Brussels Ibis Regulation Art. 51 note 12 (both on the corresponding provision of the Brussels I and Ibis Regulation). Trib. Bruxelles J. trib. 1978, 283 (with respect to the French pourvoi en cassation). In the same sense though under the Brussels Convention OLG Karlsruhe IPRax 1987, 171 with note Mezger (146); Interdesco S.A. v. Nullifire (1992) 1 Lloyd’s REp. 180 (Q.B.); also Kropholler/von Hein and Cuniberti/Rueda, in: Magnus/Mankowski (preceding note). Also Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 153. Supporting this result Paraschas, in: Geimer/Schütze Art. 27 Brussels IIbis note 8; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 27 note 4, Art. 35 note 4.

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9 As to the special rule on ordinary appeals in Ireland and the United Kingdom see below note

20. 10 The appeal against the original judgment must have been lodged in the judgment state or –

in contrast to Art. 27 – must be still admissible there and not time-barred. Both the appeal procedure and the time limit are regulated by the national law of the judgment state. If the appeal period has lapsed for all parties involved – no matter which party lodged the appeal or would be entitled to it19 – the original judgment can no longer be attacked by ordinary remedies; a stay of proceedings then becomes unnecessary and unjustified. 3. Application for a stay of proceedings

11 The appeal court in the enforcement state cannot order a stay of proceedings on its own

motion. The party against whom enforcement is sought must apply for a stay. This can be even the party who instituted the appeal in the enforcement state. On the other hand no other party than the one against whom enforcement is sought is entitled to apply for a stay even if the other party has lodged the appeal in the judgment state and/or in the enforcement state.20 12 But it has been rightly advocated that by way of analogy also an involved child should have

the right to apply for a stay, at least where the appeal against the original judgment has been lodged in the child’s interest and where the child objects to the appeal in the enforcement state although enforcement is not sought against the child.21 13 If no appeal has been lodged and the time for an ordinary appeal has expired in the judgment

state the application for stay of proceedings in the enforcement state becomes inadmissible because due to the res judicata effect there is no longer any danger of conflicting judgments. 4. Discretion in granting a stay of proceedings 14 The application for a stay does not oblige the court to stay the proceedings.22 It is still the

court’s discretion to grant a stay depending on the circumstances of the case. A first consideration should be that no stay is admissible where the appeal in the enforcement state must be rejected a limine or has on other grounds evidently no merits. The main further consideration whether a stay should be granted is the probable fate of an appeal in the judgment state and also in the enforcement state.23 The European Court of Justice has made it clear already under the comparable provision of the former Brussels Convention that in 19

20

21

22

23

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Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 6; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 4. Paraschas, in: Bülow/Böckstiegel/Geimer/Schütze Art. 35 Brussels IIbis note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 2. In this sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 2; even more generously: Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 4; contra Hausmann Art. 35 EuEheVO note 194. Report Borrás note 94; OLG Stuttgart FamRZ 2014, 1567; Andrae, in: NomosKommBGB Art. 35 EheVO note 3; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 8; Völker, in: Prütting/Gehrlein Art. 28– 36 Brüssel IIa-VO note 15. Also OLG Stuttgart FamRZ 2014, 1567; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 8.

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granting a stay a restrictive line should be followed.24 In proceedings concerning the enforcement of parental responsibility judgments it is particularly important not to delay proceedings by generously granted stays. Anyhow, the courts of the enforcement state are “under no circumstances” entitled to review the original judgment (Art. 31 (3)). Nonetheless, they must assess the chances whether or not the foreign court will uphold the judgment; but they should not merely speculate on the possible outcome of an appeal in the state of origin and should not assume too easily that the original judgment will be annulled or amended on appeal. They may take into consideration in particular new facts or developments which occurred after the release of the original judgment and which therefore could not have been taken into account in that judgment.25 It is however no reason to grant a stay where the appellant merely failed to bring known facts before the court of the original judgment (if this court would not take them into account).26 A further consideration can be how onerous the enforcement or a stay for the affected party is. In particular, where the enforcement – for temporary reasons – would put the child’s health or its other vital interests at serious risk a stay may or even must be ordered.27 Under the Brussels I regime a stay was more often refused than granted.28 This seems to be the case under the Brussels IIbis Regulation, too.29 Where an appeal has not yet been lodged it appears as adequate exercise of discretion if the 15 court regularly combines a stay (if it considers it at all as appropriate) with a time limit for lodging the appeal (as to this possibility see the following notes). 5. Setting a period for appeal (par. 1 cl. 2) When granting a stay of proceedings the court has also discretion as to its length. Generally, 16 the stay should be granted until the appeal in the judgment state is disposed of.30 If the appeal in the judgment state has not yet been lodged the court in the enforcement state can stay the proceedings and set in addition a time limit for lodging the appeal (Art. 35 (1) sent 2; cf. also supra note 15). This time limit does not in any way affect the time for appeal prescribed in the judgment state.31 However, if the appeal is not lodged within the specified time the appeal court in the enforcement state will grant no further stay of proceedings but decide on 24

25

26 27 28

29 30 31

B.J. van Dalfsen and others v. B. van Loon and T. Berendsen (Case C-183/90), (1991) ECR I-4743, I-4774 paras. 27–37; as to national jurisprudence cf. BGH IPRax 1995, 243 with note Grunsky (218) and Stadler (220); Paris Rev. crit. 2002, 362 with note Pataut; OLG Düsseldorf RIW 2004, 391; OLG Köln NJW-RR 2005, 932; cf. also Kropholler/von Hein Art. 46 note 5; Cuniberti/Rueda, in Magnus/Mankowski Art. 51 note 4. Favouring the view that these are the only reasons that are to be taken into account: Andrae, in: Nomos Kommentar BGB I Art. 35 note 3; also Kropholler/von Hein Art. 46 note 5; advocating that all facts and reasons must count which the foreign court would take into consideration, Cuniberti/Rueda, in: Magnus/ Mankowski Art. 51 note 6. Cf. ECJ (fn. 24). See now the Recast Proposal (infra note 24). For a refused stay cf. for instance: OLG Köln, OLGR Köln 1996, 99; OLG Saarbrücken RIW 1998, 632, 633: for a granted stay cf. for instance: CA Versailles RCDIP 81 (1992) 117 with note Gaudemet-Tallon. See, e.g., OLG Stuttgart FamRZ 2014, 1567, where a stay was also refused. Cuniberti/Rueda, in: Magnus/Mankowski Art. 51 note 8 (with respect to the Brussels Ibis Regulation). Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 5.

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the merits. The court can thereby factually reduce rather long time limits which some Member States allow for appeals. 17 The time limit set for appeal must be adequate. If the set limit is inadequately short an

appropriate time limit should start running. 6. Stay and enforcement under conditions? 18 Some authors assume that the appeal court in the enforcement state has no discretion to

grant enforcement or to stay proceedings under conditions. This is advocated in particular with respect to the discretion to order the provision of a security.32 The argument is that Art. 35 does not contain the possibility provided for by the former Art. 46 (3) Brussels I Regulation that “(t)he court may also make enforcement conditional on the provision of such security as it shall determine.” First, the text has to be read carefully: it refers only to enforcement under the condition of security. It does not mention, let alone exclude the possibility to stay proceedings under certain conditions. And Art. 46 Brussels I Regulation and its predecessor Art. 38 Brussels Convention were understood to allow courts to grant a stay under conditions.33 That Art. 51 Brussels Ibis Regulation does no longer contain the mentioned provision delivers no counter-argument because Art. 44 Brussels Ibis Regulation provides for the possibility of enforcement under security on a far broader basis.34 Therefore, the fact that the Brussels IIbis Regulation has refrained from taking over the quoted provision does not necessarily imply that a stay cannot be granted under conditions. On the contrary, one such condition is the discretionary possibility to order that an appeal be lodged within a specified time (Art. 35 (1) cl. 2, see supra note 15) and there is no indication that this is meant to exclude all other kinds of conditions. Where appropriate a stay of proceedings can therefore be made conditional. Especially with respect to original decisions on costs a stay under the condition of security can be appropriate.35 19 As far as enforcement under conditions is concerned the argument has more weight that the

Brussels IIbis Regulation has deliberately not taken over the respective provision on security (Art. 46 (3) of the Brussels I Regulation; now Art. 44 (1) (b) Brussels Ibis Regulation). This makes sense with respect to judgments on the exercise of parental responsibility. They have no contents whose enforcement could and should be made conditional on the provision of a security. However, this is different with the enforcement of decisions on costs. There, a security can effectively function as protection against the enforcement of a judgment which may afterwards be quashed.36 Their enforcement on security should therefore be allowed.37 32 33

34 35

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See, e.g., Gottwald, in: MünchKommZPO Art. 35 note 3. Cf. for instance Petereit v. Babcock International Holdings Ltd. (1990) 2 All E.R. 135 (Q.B.); Trib. Bruxelles, in: Digest I-38 B 3 (both with respect to the Brussels Convention); Cuniberti/Rueda, in: Magnus/ Mankowski Art. 51 note 9 (with references to case law under the Brussels Convention and the Brussels I Regulation). See thereto Cuniberti/Rueda, in: Magnus/Mankowski Art. 44 note 10. Favouring the same result: Netzer, in: Kindl/Meller-Hannich/Wolf, Gesamtes Recht der Zwangsvollstreckung, Art. 35 Brüssel IIa-VO note 2; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 7; contra Gottwald, in: MünchKommZPO Art. 35 note 3 (denying a need for such a possibility); evidently also Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 153.

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7. Specific rule for British/Irish appeals (par. 2) Art. 35 (2) provides a special rule as regards appeals against original judgments rendered in 20 Ireland or the United Kingdom. Both common law jurisdictions do not draw a distinction between ordinary and extraordinary appeals. Therefore in both countries any appeal qualifies as an ordinary appeal in the sense of Art. 35 (1). A parallel provision as contained in Art. 27 (2) Brussels IIbis Regulation was also contained in Arts. 37 (2) and 46 (2) Brussels I Regulation and is now to be found in Art. 51 (2) Brussels Ibis Regulation where it includes also Cyprus for the same reasons as Ireland and the UK. Art. 35 (2) Brussels IIbis Regulation should therefore also apply to Cyprus.38 In respect of the Brussels I regime it has been recommended to make very cautious use of the power to stay enforcement proceedings if British or Irish judgments are involved.39 This should be also considered when applying Art. 35 Brussels IIbis Regulation to judgments from these countries. How the situation will develop in Britain after the Brexit, remains to be seen. 8. Questions of proof The party rightfully applying for a stay bears the burden to prove that either an appeal has 21 been, or could still be, lodged in the judgment state. That means that the institution of appeal proceedings must be shown, regularly by respective documents. The same holds true for the institution of appeal proceedings if the court has set a time limit within which the appeal is to be lodged. If no appeal has been lodged yet, the applicant must further prove that the time for appeal has not yet expired. For this it is necessary to prove when the time for appeal started. The applicant should also quote the statutory time limit for appeals though it is doubtful whether s/he is under a strict burden to prove it. IV. Consequences If a stay is granted the consequences are regulated by national law on stay of proceedings. If 22 no stay is granted the court decides on the appeal in the ordinary way. The decision which denies a stay of proceedings is not a judgment falling under Art. 34 for 23 which the remedies are available to which Art. 34 refers.40 Eventual remedies against either the grant or the refusal of a stay of proceedings are regulated by national law.41

36

37

38 39 40

41

Cf. also Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 7. Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 10; but contra Andrae, in: Nomos Kommentar BGB I Art. 35 note 3. The Brussels IIbis Recast Proposal includes Cyprus, too (see infra note 24). Report Schlosser note 204; Cuniberti/Rueda, in Magnus/Mankowski Art. 51 note 13. Cf. also Andrae, in: Nomos Kommentar BGB I Art. 35 note 3; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 11; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 35 note 6. Cf. also Andrae, in: Nomos Kommentar BGB I Art. 35 note 3; Paraschas, in: Geimer/Schütze Art. 35 Brussels IIbis note 11.

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V. Reform 24 The Recast Proposal of 2016 modifies Art. 35 (as a new Art. 46) moderately and further

introduces a new Art. 36. According to the proposed new Art. 46 (1) “(t)he court to which an application for refusal of enforcement is submitted or with which an appeal is lodged under Article 44 or 45 “appeal and further appeal against a decision on the refusal of enforcement” may, on the application of the party against whom enforcement is sought, stay the proceedings for one of the following reasons: (a) an ordinary appeal has been lodged in the Member State of origin; (b) the time limit for such appeal has not yet expired; (c) in case of a decision on parental responsibility, proceedings to modify the decision or for a new decision on the same subject matter are pending in the Member State having jurisdiction over the substance of the matter under this Regulation. Where the court stays the proceedings for the reason referred to in point (b), it may specify the time limit within which an appeal is to be lodged.” Par. (2) of the proposed Art. 46 corresponds with par. 2 of the present Art. 35 Brussels IIbis Regulation but includes also Cyprus besides Ireland and (still) the UK. The proposed new Art. 36 deals generally with the stay of enforcement proceedings: the court has to “stay the enforcement proceedings where the enforceability of the decision has been suspended in the Member State of origin.” Moreover, the enforcement court may stay proceedings where “due to temporary circumstances such as serious illness of the child enforcement would put the best interests of the child at grave risk.” Article 36: Partial enforcement 1. Where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them, the court shall authorise enforcement for one or more of them. 2. An applicant may request partial enforcement of a judgment. I. II. III.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Partial enforcement 1. Partial enforcement ex officio (par. 1) . 4

IV.

2. Application for partial enforcement (par. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. Contents and aim 1 The Article deals with partial enforcement. It allows that only a part of a judgment is

declared enforceable where either enforcement of all parts of the judgment cannot be authorised, (par. 1), or where the applicant has so requested, (par. 2). The intention is that enforcement should not be fully denied where a severable part of a judgment is enforceable. 2 Like Arts. 33–35 for appeal procedures is Art. 36 part of the substantive procedural law

which the Regulation – still after the model of the former Brussels I Regulation – unifies to a considerable extent among the Member States. As far as Art. 36 reaches it replaces national rules on partial enforcement of foreign judgments.

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II. Legislative history Art. 36 has been verbally taken from Art. 29 Brussels II Regulation. The provision corre- 3 sponds also to Art. 48 Brussels I Regulation and its predecessor, Art. 42 Brussels Convention. III. Partial enforcement 1. Partial enforcement ex officio (par. 1) Where not all parts of a judgment can be enforced, according to Art. 36 (1) the court in the 4 enforcement state must enforce as much of the judgment as is enforceable. The court is not allowed to reject the enforcement of the whole judgment because only parts of it are not enforceable.1 In this respect the court has no discretion (“shall authorise”) and must decide ex officio.2 No special application for partial enforcement is necessary. The application to declare the entire judgment enforceable is deemed to contain always the application that at least the enforceable part(s) shall be declared enforceable. Partial enforcement requires that the judgment “has been given in respect of several matters 5 and enforcement cannot be authorised for all of them”. The judgment in question must therefore first concern several “matters” (“Ansprüche”, “chefs de la demande”) which can be separated. Since only judgments on the exercise of parental responsibility and on costs in matrimonial matters are covered by Arts. 28–363 it must be separate issues concerning the parental responsibility. This can be the case where the judgment concerns more than one child or the right of access as well as the return of the child or where only part of the judgment falls under the Brussels IIbis Regulation (as in cases where access and maintenance are determined).4 A decision on costs is however not severable.5 It has been rightly argued that a detailed order on access with several dates for visits of one child is also not severable.6 Its enforcement can only be authorised or refused as a whole. Secondly, part of the judgment must not be enforceable. This is the case where the respective 6 part falls outside the scope of the Regulation or does not meet the Regulation’s requirements for enforcement. 2. Application for partial enforcement (par. 2) Art. 36 (2) allows the applicant to restrict his or her application from the beginning to partial 7 1

2

3 4

5 6

Paraschas, in: Geimer/Schütze Art. 36 Brussels IIbis note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 36 note 1. Andrae, in: Nomos Kommentar BGB I Art. 36 note 1; Dörner, in: Hk-ZPO Art. 36 EheVO 2003 note 1; Dornblüth 172 et seq.; Paraschas, in: Geimer/Schütze Art. 36 Brussels IIbis note 2; Rieck Art. 36 note 1. Cf. Art. 28 (1) and the comment thereon (Siehr). Andrae, in: Nomos Kommentar BGB I Art. 36 note 1; Hausmann Art. 36 EuEheVO note 197; Paraschas, in: Geimer/Schütze Art. 36 Brussels IIbis note 2 et seq.; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 155; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 36 note 5. Contra Dornblüth 173. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 36 note 6; similarly Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 155.

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enforcement. Again, it is necessary that the issue determined by the judgment in question is severable. This will not be the case where for instance a detailed plan of several visits for a certain period is ordered. The applicant cannot request to authorise only some of the visits. But it is admissible for example where the judgment concerns several children to apply for the authorisation of the parts concerning one child. 8 In contrast to (par. 1) it is not necessary that the rest of the judgment for which no enforce-

ment is sought be unenforceable. The applicant is free to request the enforcement of such part of a fully enforceable judgment as s/he likes.7 The court is bound by this scope of the application and is not allowed then to grant enforcement of the entire judgment (ne ultra petita). Yet, the court must still determine whether the requested part can be fully or only partially authorised or must be refused at all.8 IV. Reform 9 The Recast Proposal leaves par. (1) of Art. 36 essentially unaltered but deletes par. (2)

although the new formulation – now in Art. 47 Recast – does evidently not intend to exclude an application for partial enforcement.

Section 3: Provisions common to Sections 1 and 2

Introductory remarks 1 Section 3 of Chapter III contains three provisions which define the formal requirements for

documents which are in principle necessary for the recognition and enforcement of decisions from other EU-Member States (except Denmark) concerning marriage and parental responsibility.1 Verbally, Section 3 refers to the two preceding Sections of this Chapter only. However, some provisions of Section 3 are also of relevance for Section 5 of Chapter III. In fact, while Section 1 and 2 prescribe the material requirements, Section 3 provides the general rules concerning the formal requirements for the recognition and enforcement of a judgment, settlement or other enforceable instrument from a Member State and the way to prove the document’s authenticity and enforceability. 2 The Articles of Section 3 had their almost literal predecessors in Arts. 32–34 of the Brussels

II Regulation.2 These were in turn modelled after Arts. 46–48 of the Brussels Convention of 1968 which were then replaced by Arts. 53–55 of the Brussels I Regulation which formed the equivalent provisions of that Regulation. The slightly corresponding provisions of the pre7

8 1 2

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Andrae, in: Nomos Kommentar BGB I Art. 36 note 1; Paraschas, in: Geimer/Schütze Art. 36 Brussels IIbis note 5. Paraschas, in: Geimer/Schütze Art. 36 Brussels IIbis note 5. In the same sense Paraschas, in: Geimer/Schütze Art. 37 Brussels IIbis note 2. They corresponded to Arts. 33–36 of the Proposal for a Brussels II Convention which was first intended and on which Alegría Borrás delivered her Report (OJ of 16 July 1998, C 221/27 et seq.).

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Article 37

sent Brussels Ibis Regulation are Arts. 42, 47 (3) and 53. The understanding of the mentioned Arts. in the Brussels Convention, the Brussels I Regulation and now the Brussels Ibis Regulation can and should be taken account of as regards the interpretation of Arts. 37–39 of the Brussels IIbis Regulation. Moreover, these sets of provisions have to be interpreted uniformly as far as their text and aim is identical. It is therefore unfortunate that these sets are not fully in line but differ in their wording.3 Section 3 is supplemented by Annex I and II. These Annexes are of great practical relevance. 3 They provide and prescribe standard forms which unify the form of certificates by which judgments on matrimonial matters and matters of parental responsibility are officially documented. The use of these uniform and standardised forms of certificates which are available in all official EU languages and follow in whatever language strictly the same pattern facilitates the unionwide recognition and enforcement procedure to a considerable extent. Section 3 is further supplemented by Art. 52 which dispenses with any requirement of 4 legalisation or other similar formality. Documents issued in one Member State are granted full and direct effect in all other Member States. The Section does not deal with the way how the service of documents is effected. This aspect 5 is regulated by Council Regulation No. 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters etc.4 as far as questions of service between the Member States are concerned.5 Whether the service within a Member State has been orderly effected is to be determined according to the national law of that state. Article 37: Documents 1. A party seeking or contesting recognition or applying for a declaration of enforceability shall produce: (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and (b) the certificate referred to in Article 39. 2. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: (a) the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document; or (b) any document indicating that the defendant has accepted the judgment unequivocally. 3

4 5

There were already significant differences between the Brussels I and the Brussels IIbis Regulations; for instance, in contrast to Art. 55 Brussels I Regulation Art. 38 Brussels IIbis Regulation does not mention the “competent authority.” Even greater are now the differences between the respective provisions of the Brussels Ibis and the IIbis Regulation. OJ 10 December 2007, L 324/79. See also Recital (15) of the Brussels IIbis Regulation.

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Article 37 I. II. III.

IV.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Scope of the Article . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. Covered judgments . . . . . . . . . . . . . . . . . . . . . . 6 2. Covered procedures . . . . . . . . . . . . . . . . . . . . . 9 Generally required documents (par. 1) 1. General aspects; burden to produce the documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Copy of the judgment (par. (1) (a)) . . . 12 3. The necessary certificate (par. (1) (b)) 16

Brussels IIbis Regulation V.

Additional documents required in case of default judgments (par. 2) 1. General aspects . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. Default proceedings . . . . . . . . . . . . . . . . . . . . . 19 3. Proof of service of proceedings (par. (2) (a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4. Acknowledgement of judgment (par. (2) (b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 VI. Time for production of documents . . . . . . . 27 VII. Effect of documents . . . . . . . . . . . . . . . . . . . . . . . . 28 VIII. Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

I. Contents and aim 1 Art. 37 is the central provision of the Section. It prescribes the documents which must be

produced – subject to the exception in Art. 38 (1) – when a judgment in matters covered by the Regulation shall be recognised or attacked or be declared enforceable in a Member State other than the judgment state. Generally two documents are required: an authenticated copy of the respective judgment and a certificate using the standard form provided for by Annex I (on matrimonial matters) or II (on parental responsibility). By requiring these documents the Article aims at the easy but at the same time safe proof of the existence, contents and enforceability of the judgment in question. Special provision (para. 2) is made for default judgments where it must be further documented that the defaulting party was correctly informed of the institution of proceedings or has acknowledged the judgment. II. Legislative history

2 The present Article is identical with Art. 32 of the Brussels II Regulation1 which was in force

until 28 February 2005 and which in substance was based on Art. 46 Brussels Convention (replaced by the similar Art. 53 of the Brussels I Regulation2 and now by – the rather different – Arts. 37, 42, 47 (2) Brussels Ibis Regulation). But the Brussels Convention did not yet provide for the possibility of an official standard form certificate which contains all relevant information concerning the judgment in question. This practically important standardisation which greatly facilitates the European recognition and enforcement procedure was first introduced by the Brussels II Regulation.3 3 While par. 2 of the present Article continues the tradition to require in default cases the

additional proof of sufficient service of the default proceedings4 already the respective Art. 53 of the Brussels I Regulation and now Art. 37 and 42 Brussels Ibis Regulation dispenses with this requirement. This lack of consistency between the instruments has been critizised.5 1

2 3

4

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The only changes are in (1) (b): from “a certificate” into “the certificate” and the number of the Article referred to. Art. 53 Brussels I Regulation is in turn identical with Art. 53 Lugano Convention 2007. As to warnings that the standardised forms may too easily facilitate mistakes in filling them, see Rauscher, in: Rauscher Brussels IIbis Regulation Art. 39 note 1. See Art. 46 no. (2) Brussels Convention.

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Article 37

III. Scope of the Article The Article defines autonomously which documents a party must produce when a judgment 4 rendered in one Member State is relied upon or contested in recognition or enforcement proceedings in another Member State.6 National law does no longer prescribe the necessary documents. Yet, national law is still relevant insofar as it prescribes the conditions according to which the required documents are authentic.7 The documents mentioned in par. 1 and 2 must be regularly produced. Without their 5 production a judgment from another Member State can normally neither be recognised nor enforced. Only if the court is satisfied that sufficient other proof has been presented can it dispense with the production of the documents prescribed by Art. 37 (see Art. 38 para. 1). 1. Covered judgments The provision covers any kind of judgment in matrimonial matters and in matters of 6 parental responsibility which fall under Arts. 21 seq.8 Therefore it must be borne in mind that Arts. 21 seq. concern judgments in matrimonial matters only as far as they do grant a divorce, separation or annulment of the marriage. Negative judgments which merely refuse the requested change of the marital status are not covered.9 Moreover, judgments of Member States which recognise or declare enforceable judgments on divorce etc. of third states fall also outside the scope of the provision. Exequatur on an exequatur is neither here nor elsewhere in the European law on the enforcement of foreign judgments permitted10 since it would extend the trust rendered to original judgments granted in the EU also to judgments from outside the EU where such trust would not always be justified. However, judgments or orders on costs or on legal aid from other Member States though 7 specifically addressed by Arts. 49 and 50 can also be proven by the documents requested by Art. 37. It does not matter in which written form the judgment has been released. Even where an 8 abbreviated written form of judgment is admitted Art. 37 applies.11 By way of reference Art. 37 is further applicable to settlements and other enforceable instruments.12 Judgments on rights of access to the child or on the return of the child fall both under Arts. 37 et seq. and under Arts. 40 et seq. as the entitled person chooses; but if the direct enforcement procedure under Arts. 40 et seq. is chosen documents in relation to this procedure are governed by Art. 45.13 5 6 7 8 9 10

11 12 13

See Geimer, in: Geimer/Schütze Art. 32 Brussels II Regulation note 1. Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 1. See infra note 12 et seq. See Art. 21 note 2 (Siehr). Art. 22 note 4 (Siehr). Owens Bank Ltd. v. Fulvio Bracco Industria Chimica SpA, (Case C-129/92) (1994) ECR I-117 (with respect to the Brussels I Regulation); Kerameus, in: Magnus/Mankowski Intro. to Arts. 38–52 Brussels I Regulation note 6. Equally for the Brussels I Regulation: Kropholler/von Hein Art. 53 note 2. See Art. 46 note 10 (Magnus). See thereto the comment to Art. 45 notes 3 et seq. (Magnus).

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2. Covered procedures 9 Art. 37 mentions the proceedings to which the whole Section 3 applies: proceedings where a

party seeks or contests the recognition of a judgment or applies for its enforcement. Often, these will be court proceedings where the recognition or enforcement is the single and central issue. But Art. 37 and the whole Section apply as well where the recognition or enforcement of a judgment on the covered issues is only incidental to the main issue.14 This has to be deduced from the purpose of this Article – and other Articles, too – to facilitate the recognition and enforcement of judgments in general.15 Also the standardisation of forms aims at this purpose. However, proceedings and documents concerning rights of access to, or the return of, the child can be also dealt with in accordance with Arts. 40 seq. which offer an even speedier way of enforcement. 10 The provision is also available where an entry into a civil-status record is sought or con-

tested.16 The authenticated copy of the judgment accompanied by the certificate under Art. 39 suffices as proof.17 The competent authority can require the interested person to produce these documents. IV. Generally required documents (par. 1) 1. General aspects; burden to produce the documents 11 In all cases, even where the judgment in question was given in default,18 two documents need

to be presented: first, the judgment itself as the evident basis of any proceedings concerning its recognition or enforcement and, second, the standardised certificate prescribed by Annex I or II as the case may be. These documents must be produced by the person instituting the proceedings or relying incidentally on the judgment.19 Even in proceedings where a party contests the recognition it will be regularly the party instituting these proceedings who must produce the documents. Neither the court of the judgment state nor the court of the recognition or enforcement state is obliged to provide the Annex I- or II-certificate ex officio.20 2. Copy of the judgment (par. (1) (a)) 12 Only a copy of the judgment in question must be produced. The Regulation does not require

the production of the original though its production certainly suffices. However, a copy is needed “which satisfies the conditions necessary to establish its authenticity”. This means 14

15 16

17 18 19

20

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In the same sense Paraschas, in: Geimer/Schütze Art. 37 Brussels IIbis note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 3; Spellenberg, in: Staudinger Art. 37 note 1. See Recitals no. 23 seq. of the Brussels IIbis Regulation. Report Borrás note 105 (though to the differently worded preceding text); Paraschas, in: Geimer/Schütze Art. 37 Brussels IIbis note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 9. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 8. But for default judgments see too notes 18 et seq. See expressly Art. 30 (3) for the enforcement procedure; further Dörner, in: Hk-ZPO Art. 37 EheGVO note 3; Paraschas, in: Geimer/Schütze Art. 37 Brussels IIbis note 3 (also pointing to exceptions); Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 4. See OGH (4 Ob 46/10h) Zak 2010/487, 279.

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Article 37

that according to the locus regit actum maxim the copy must meet the requirements of authentication prescribed by the Member State where the judgment had been rendered.21 Besides that, no legalisation or other formality is required (see Art. 52). The law of the judgment state defines under which conditions a copy of a judgment is 13 authentic. These requirements are not identical in the Member States. But regularly, a rather strict form for authentication is necessary, for instance stamp and signature put on the copy by the clerk of the court which rendered the judgment.22 A mere copy without any further kind of authentication does not suffice.23 It is unfortunate that the Regulation does not autonomously state the requirements of authentication since the present rule requires the court seized to receive reliable information on the means of authentication in the judgment state. A translation of the judgment need not be furnished but can be requested by the court which 14 is concerned with the recognition or enforcement of the judgment (see Art. 38 (2)). It has to be noted that Art. 38 (1) does not refer to Art. 37 (1) (a). Therefore, the original of 15 the judgment or its authenticated copy must be produced in any event.24 The court cannot dispense with this requirement that is essential for any recognition or enforcement of a judgment.25 3. The necessary certificate (par. (1) (b)) Besides the copy of the judgment the certificate referred to in Art. 39 must be produced. This 16 is the certificate in the standard form of Annex I in case of a judgment in matrimonial matters and of Annex II in case of a judgment on parental responsibility.26 In principle, the court can also request a translation of the standard form certificate (Art. 38 17 (2)), however, not its legalisation (Art. 52). But though the certificate will regularly be in the language of the judgment state its standardised form will normally nonetheless enable the court seized with the recognition and enforcement proceedings to understand its contents and to proceed without a translation.

21

22 23

24

25 26

Report Borrás note 103; Andrae, in: Nomos Kommentar BGB I Art. 37 note 2; Dörner, in: Hk-ZPO Art. 37 EheVO note 2; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C-157; Rieck Art. 37 note 2; in the same sense with respect still to Art. 53 Brussels I Regulation: Kropholler/von Hein Art. 53 Brussels I Regulation note 2. See for instance for Germany: § 317 para. (4) ZPO. Andrae, in: Nomos Kommentar BGB I Art. 37 note 2; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 37 note 2. So expressly Report Borrás note 105; further Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 2; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 206. Also Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 157. See further the comment to Art. 39 (Magnus).

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V. Additional documents required in case of default judgments (par. 2) 1. General aspects 18 If a default judgment has been delivered its recognition and enforcement requires more than

the two documents under par. 1. In addition, it must be shown and evidenced by documents that the defaulting party had the opportunity to defend itself properly in the original proceedings or is content with the judgment.27 This additional requirement serves the aim to safeguard the procedural rights of the defaulting party. Proof of proper and timely service excludes from the beginning the corresponding ground under Arts. 22 (b) and 23 (c) for a non-recognition of the judgment in question. It must therefore be proved by documents that the defaulting party was given sufficient notice of the institution of proceedings or that this party accepted the judgment unequivocally. It is self-understanding and the text of par. (2) – which in contrast to par. (1) does not mention the case of contesting recognition – makes it clear that no such proof is necessary where a party is seeking the non-recognition of the default judgment.28 2. Default proceedings 19 Par. 2 covers default proceedings in the sense as used in Arts. 18 par. 1, 22 (b) and 23 lit. c29

but also in a wide and untechnical though autonomous sense.30 It is only necessary that the defendant did neither participate in, nor submit to, the proceedings.31 However, a decision determining the costs for one party is no default judgment if the principal judgment was no default judgment.32 3. Proof of service of proceedings (par. (2) (a)) 20 The proof of proper service can be effected by documents: namely either by the original or a

copy of the document which shows that the defaulting party was served with the document that instituted the proceedings or was served with a similar document that informed the defaulting party of the proceedings. The original of the official service document suffices in any event. If its copy is produced it must be a true and certified copy. The certification must stem from a person authorised to certify documents (for instance, a notary public). Where already the original proceedings involved service from the judgment state to another Member State the certificate under Art. 10 Service Regulation can prove proper service. 27

28 29 30

31

32

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For a case of non-recognition because of lack of proper service see AG Pankow-Weißensee (28 F 935/09) BeckRS 2011, 15391 (French decision transferring custody to father without mother being served or heard not recognised in Germany). Report Borrás note 104; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 13. See the comments to these Articles. Hüßtege, in: Thomas/Putzo Art. 37 note 4; Spellenberg, in: Staudinger Art. 37 Brussels IIbis Regulation note 2. Report Borrás note 107; Andrae, in: Nomos Kommentar BGB I Art. 37 note 3; Dörner, in: Hk-ZPO Art. 37 EheVO note 5; Paraschas, in: Geimer/Schütze Art. 37 Brussels IIbis note 6; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C-158; Rieck Art. 37 note 5. Dörner, in: Hk-ZPO Art. 37 EheVO note 5; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 37 note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 10.

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Article 37

Proper service requires further that the service document gave correct and understandable 21 information that legal proceedings were instituted. More often than not will the production of the service document not evidence, let alone 22 prove the timeliness of the service. Then, it must be shown by other means that the defaulting party had sufficient time to arrange for the own defence. In any case it is for the court seized with the enforcement of the default judgment to determine whether the defaulting party was given a fair chance and sufficient time to prepare the own defence.33 As under par. (1) the court seized may request a translation of the document of the initial 23 service (Art. 38). In order to enable the court to determine whether the defaulting party was correctly served a translation of the service document will be regularly necessary. A legalisation or other formality is not required (Art. 52).34 With respect to default judgments relating to parental responsibility it could be argued that a 24 document proving that the defaulting party was properly served does not suffice since also the child should have had an opportunity to be heard. This would also correspond to Art. 23 lit. b. However, whether the child was heard will regularly be documented in the judgment itself. And if such opportunity lacked the judgment cannot be recognised and enforced in any event. 4. Acknowledgement of judgment (par. (2) (b)) Alternatively to par. (2) (a) the claimant can prove and insofar has the burden of proof that 25 the defaulting party has clearly accepted the default judgment. This alternative mirrors the ground for non-recognition formulated in Art. 22 (b) (at the end). In a case of unequivocal acceptance, even the failure of proper service of the institution of the default proceedings does not hinder the recognition and enforcement of the default judgment. The wording of par. 2 (b) (“document”) seems to suggest that the defaulting party’s assent can only be proved by a written document, though of any kind, for instance by a private letter.35 But this would be too formalistic a solution. Since in the absence of documents Art. 38 allows the court to dispense with the documentary proof even required under Art. 37 (2) (b) other means of proof (witnesses or the defaulting party’s acknowledgment) may suffice if the court considers it as sufficient information.36 But generally, an unequivocal acceptance can be proved best and simplest by, for instance, the document of (application for) a new marriage37 or of application for post-marriage maintenance.

33

34 35

36 37

Hüßtege, in: Thomas/Putzo Art. 37 Brussels IIbis Regulation note 6; Rauscher, in: Rauscher Regulation Art. 37 Brussels IIbis Regulation note 12; Spellenberg, in: Staudinger Art. 37 Brussels IIbis Regulation note 3; Rieck Art. 37 note 6 criticises that the judge in the recognition or enforcement state decides in accordance with the own law whether or not the service of the judgment state was timely. See Art. 52 note 4 (McEleavy). In this sense: Andrae, in: Nomos Kommentar BGB I Art. 37 note 3; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 37 note 7; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C-158 (written document); Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 16; Rieck Art. 37 note 7. Similarly Spellenberg, in: Staudinger Art. 37 note 3. Under Art. 22 (b) Brussels IIbis Regulation this is also a ground which evidences unequivocal acceptance

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26 It has been suggested that par. (2) (b) applies only to judgments in matrimonial matters but

not to those in matters of parental responsibility.38 This has been mainly inferred from the term “defendant” – in the German version “Antragsgegner”, in the French version “defendeur” – which is, again in the German and French version but not in the English version,39 also used in Art. 22 (b) which in turn deals only with the non-recognition of judgments relating to divorce, legal separation and marriage annulment. The corresponding provision on non-recognition in matters of parental responsibility (Art. 23 (c) uses on the contrary the term “person”).40 The textual argument should not be overestimated. But since a judgment on parental responsibility affects mainly the interests of the concerned child who is not, at least not regularly the ‘defendant’ in such proceedings, the defendant’s acceptance (namely by the child’s father or mother) of a default judgment can impair the child’s interests. The defendant’s acceptance should therefore in such case only suffice if it is safeguarded that the interests of the child are not impaired.41 VI. Time for production of documents 27 The Regulation sets no strict time limit for the production of the required documents.

Generally, they shall accompany the motion of the party instituting the proceedings on the recognition as Art. 30 (3) prescribes for the enforcement procedure.42 But Art. 38 (1) allows indirectly also later production during the proceedings. The court may also set a time limit for the production of the respective document(s). VII. Effect of documents 28 If the necessary documents have been furnished they establish full proof of the existence and

contents of the judgment as well as its enforceability and correct service. Neither further documents nor other proof is required. The correctness of the judgment and/or of the certificates under Art. 39 or of the additional service document in case of default judgments can only be attacked by proof that the respective document was falsified. Where the necessary documents – except the judgment which must be presented in any event43 – have not been, or cannot be produced a judgment from another Member State can only be recognised and enforced if the court dispenses with the production of the documents under Art. 38 par. 1 because it regards the gathered information as sufficient. VIII. Reform 29 The Recast Proposal of 2016 renumbers the present Art. 37 as new Art. 28 and deletes the

38

39 40 41

42 43

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of a divorce judgment rendered in default; see Report Borrás note 70; see also Dornblüth pp. 130 et seq. with further examples. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 15. Also the Report Borrás note 104 can be understood in this sense. There, Art. 22 (b) uses the term “respondent” in contrast to “defendant” in Art. 37 (2) (b)). See Rauscher, in: Rauscher Brussels IIbis Regulation Art. 37 note 15. Rauscher, in: Rauscher Art. 37 note 15 suggests for such cases that other than mere documentary proof of the acknowledgment is required. This alone can, however, not safeguard the child’s interests. See thereto Art. 30 note 6 (McClean). See Art. 38 note 5 (Magnus).

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present par. (2) on default judgments. A new par. (2) encapsulates in essence the present Art. 38 (2) sent. 1. Article 38: Absence of documents 1. If the documents specified in Article 37(1)(b) or (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production. 2. If the court so requires, a translation of such documents shall be furnished. The translation shall be certified by a person qualified to do so in one of the Member States. I. II. III.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Absence of documents (para. 1) 1. Covered documents . . . . . . . . . . . . . . . . . . . . . 5 2. Non-production of documents . . . . . . . . . 8 3. Modes of substitution a) General discretion . . . . . . . . . . . . . . . . . . . . . . . 11 b) Setting a time period . . . . . . . . . . . . . . . . . . . . 14

IV. V. VI.

c) Acceptance of equivalent documents . . 16 d) Dispense with the production of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 e) Dismissal of application . . . . . . . . . . . . . . . . 22 Translation of documents (par. 2) . . . . . . . . 23 Application of the Article to competent authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

I. Contents and aim The present provision facilitates the proof of the formal requirements for the recognition 1 and enforcement of judgments from Member States. The whole provision serves the aim of speedy and easy but at the same time fair and reliable requirements for the recognition and enforcement of judgments. Its primary objective is to avoid an overstretched formalism;1 therefore, as a rule no translations are required. But if the necessary documents (with the exception of the judgment) are lacking the interested party has to be given a chance to satisfy the court that the requirements for recognition and enforcement are nonetheless met. Article 38 (1) provides for the situation that the documents normally required for the 2 recognition or enforcement of a judgment from another Member State are not produced. Then, the recognition or enforcement need not necessarily fail (unless it is the judgment which cannot be produced).2 In respect of the lacking document(s) the court or competent authority seized with the recognition or enforcement is given a rather wide discretion to choose among different reactions on the non-production, even to dispense with the production of the documents. This means that the facts normally proved by the production of the regular documents can also be established by other means if the court so allows. The provision contains a rule of material law of procedure. As far as the provision reaches it prevails over any conflicting national law of the Member States concerning the non-pro-

1

2

On this reasoning the original provision of the Brussels Convention (Art. 48) was based; see Jenard Report to Art. 48 Brussels Convention. See infra note 5.

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duction of documents.3 Only insofar as it supports the purpose of the Article can national law be applied.4 3 Article 38 (2) confers on the court also a certain discretion to request a translation of the

required documents. If a translation is requested it must be one certified by a qualified translator. II. Legislative history 4 The present Article had its essentially identical predecessor in Art. 34 Brussels II Regulation

and this provision corresponded in turn almost verbally to Art. 48 Brussels Convention (which was replaced by Art. 55 Brussels I Regulation and now by the – rather different – Arts. 37 (2) and 47 (3) Brussels Ibis Regulation). But in contrast to Art. 55 Brussels I Regulation Art. 38 (1) Brussels IIbis Regulation does not mention the “competent authority”. Despite the differing wording no difference in substance was intended. This becomes apparent when Art. 21 (2) Brussels IIbis Regulation is taken into account. It must be evidently possible that the updating of civil-status records mentioned there can be effected by the competent authority on the basis of the regularly required documents for whose production the authority then also must be able to set a time limit. III. Absence of documents (para. 1) 1. Covered documents 5 It has to be noted that Art. 38 (1) does not cover all documents mentioned in Art. 37. Par. (1)

of the present Article does not refer to Art. 37 (1) lit. (a). Thus, the absence of the fundamental document, the judgment in question, cannot be substituted by any of the modes of Art. 38 par. (1).5 If the original or authenticated copy of the judgment cannot be produced – though the court may set a time limit for its production6 – the motion has to be dismissed.7 Since the interested party can always apply for an authenticated copy of the judgment in the judgment state and can further re-launch its motion for recognition and/or enforcement a dismissal in case of non-production of the judgment does this party no harm (except costs).8 3 4

5

6

7

8

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Kropholler/von Hein Art. 55 Brussels I Regulation note 1. See the CJEU with respect to the Brussels Convention in Roger van der Linden v. Berufsgenossenschaft der Feinmechanik und Elektrotechnik, (Case C-275/94) (1996) ECR I-1393, I-1413 para. 18. Report Borrás note 107: “A copy of the judgment in question is therefore always necessary.” Also Paraschas, in: Geimer/Schütze Art. 38 Brussels IIbis note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 2; Spellenberg, in: Staudinger Art. 38 Brüssel IIa-VO note 1. The same holds true under the corresponding former Art. 55 Brussels I Regulation: see Kropholler/von Hein Art. 55 Brussels I Regulation note 1. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 2. Also in this sense with respect to Art. 48 Brussels Convention: OLG Frankfurt 8 June 1988, IPRspr. 1988 no. 198; and with respect to Art. 55 Brussels I Regulation: Kropholler/von Hein Art. 55 Brussels I Regulation note 1; Staudinger, in: Rauscher Art. 55 Brussels I Regulation Art. 37 note 1. In the same sense Andrae, in: Nomos Kommentar BGB I Art. 38 note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 2. See also Kropholler/von Hein Art. 55 Brussels I Regulation note 1.

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Article 38

However, the certificate according to Annex I or II is not indispensable but can be substi- 6 tuted or supplemented either by other documents or by other information.9 The same holds true for the additional documents required in cases of default judgments be it either the document proving timely service10 or the document of acknowledgement.11 The provision applies irrespectively whether only one or – in case of default judgments – 7 more required documents are not produced. 2. Non-production of documents Par. (1) requires only that the before-mentioned documents “are not produced.” The under- 8 lying reason for the non-production does not matter. Even if the interested party could, but is unwilling to, present the required documents the provision applies. It is not necessary that the interested party can not produce the documents because they were destroyed or lost or unavailable.12 However, if such unwillingness is recognisable the court will draw its conclusion from it with respect to a possible dispense with the production of those documents. Art. 30 (3) provides that the necessary documents shall be attached to the application for 9 enforcement of the judgment in question. Any non-compliance with this provision does not lead to the immediate dismissal of the application but opens the court the choice offered by Art. 38 par. 1. The same solution applies if incomplete documents are produced. If the Annex I- or II- 10 certificate is incomplete the interested party must generally be requested to apply for a rectified version. Only if this procedure would last too long with respect to the circumstances of the case at hand (for instance the enforcement of an access order) can the lacking facts be proven by other means. 3. Modes of substitution a) General discretion If the required documents are not presented the court – or competent authority13 – can 11 proceed in three different ways: it can set a time frame for their production, accept equivalent documents or dispense with the production at all. A fourth option is not mentioned but its existence is more or less self-understanding: to dismiss the motion at once.14

9

10 11 12 13 14

Difficulties with the issue of the certificate under Art. 39 have been reported, namely that this certificate is often not issued or applied for; see Dutta StAZ 2011, 33 et seq. Where such difficulties are reliably demonstrated the court may be satisfied with other evidence; see also Spellenberg, in: Staudinger Art. 38 Brüssel IIa-VO note 3. Art. 37 (2) (a). Art. 37 (2) (b). Though this is the case which the law-giver had primarily in mind; see Report Borrás note 107. See infra note 25. See also Report Borrás note 107.

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12 The choice among these reactions is at the discretion of the court.15 The discretion has to

take into account the aim of facilitating the recognition and enforcement of judgments and of procedural fairness towards the involved parties. Therefore, dismissal without giving the claiming party at least an opportunity to provide missing documents will be right only in rather rare cases where it is clear from the outset that no recognition or enforcement can be granted. 13 The options under (1) follow no specific hierarchy in the sense that first a time must be set

and must lapse before any other reaction can be chosen. The court can freely apply any of the options. Yet, in practice in most cases the court will first set a time frame. b) Setting a time period 14 Generally, the regular court reaction to missing documents should be the setting of a reason-

able time for their production.16 It is in the interest of the free circulation of judgments and facilitation of their recognition and enforcement and is required by procedural fairness that the interested party is generally given the opportunity to provide any missing document. The time frame should also be generous.17 The court’s general competence to “specify a time” should further include the possibility to prolong an already granted period of time at the respective party’s request without redress to national law.18 15 Yet, the court may refrain from specifying any time for production of missing documents

and choose immediately one of the other options if it is satisfied that the required documents can not be produced because this is either impossible or unconscionable. However, if it is only the certificate under Art. 39 which is lacking it is highly likely that this document can always be provided since in case of its loss the interested party can apply for a re-issue of this certificate.19 c) Acceptance of equivalent documents 16 Instead of the required documents the court may “accept equivalent documents.” These are

documents which do not meet the standard required by Art. 37 but are other public or private documents, for instance, letters which deliver reliable proof for the facts which the actually required documents shall establish.20 However, under Art. 37 (2) “equivalent documents” (a) or “any document” (b) suffice anyhow and the present alternative of Art. 38 (1) merely repeats this possibility. Further, it must be borne in mind that the judgment in question can never be proved by equivalent documents. 15

16 17

18

19 20

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Andrae, in: Nomos Kommentar BGB I Art. 38 note 1; Joppe/de Boer, in: de Boer 1.14. ipr-60; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 3, 5. In the same sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 3. Also Gottwald, in: MünchKommZPO Art. 38 Brussels IIbis-Regulation note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 4. Some authors suggest that national law determines the prolongation issue: Andrae, in: Nomos Kommentar BGB I Art. 38 note 2; Gottwald, in: MünchKommZPO Brussels IIbis Regulation Art. 38 note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 4. See Art. 39 note 12 (Magnus). Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 6; see with respect to the corresponding Art. 46 (2) Brussels Convention: OLG Frankfurt 29 May 1978, RIW 1978, 620 (letter of respondent confirming the receipt of the summons).

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Article 38

The alternative of the acceptance of equivalent documents will therefore probably matter 17 only with respect to the standard form certificate under Art. 39. Although it is rather unlikely that the interested party cannot get a re-issue in due time if the original certificate has been lost or destroyed the court may nonetheless accept other reliable evidence like private letters if there is good reason for such decision. But the safer and regular procedure should be to insist on the production of the certificate and specify a time for its production. The court may accept equivalent documents immediately or after the unsuccessful lapse of 18 the specified time for the production of the actually required documents. d) Dispense with the production of documents The court can even entirely dispense with the production of documents (with or without 19 setting a foregoing period of time). Again, it should be noted that this does not concern the judgment which must always be produced. The dispense presupposes however that the court has already gathered sufficient information from other means of evidence. It is of no relevance wherefrom this information stems. It may be either provided by the interested party, by the other party or a third person or may stem from prior proceedings. But it is generally for the applicant to adduce other evidence. The court is not obliged to search for it. Whether the information is sufficient as reliable proof stands in the court’s discretion. The 20 formulation “… considers that it has sufficient information” speaks in favour of a rather high degree of conviction. From the evidence before it the court must infer that the required facts are not only probable but highly likely and rather certain. A high degree of conviction is as well necessary in the interest of the other party who can only afterwards attack a decision which favours the applicant. Any redress to national law concerning the necessary degree of conviction appears to be superfluous. The dispense can come into play in particular where the required documents have been 21 destroyed21 and cannot be replaced. e) Dismissal of application The court is also free to reject the application as inadmissible, in particular where even after a 22 set time period the documents are still missing and neither equivalent documents nor other evidence is offered.22 If the court declares the application inadmissible this decision does not bar the applicant to apply again at a later time.23 However, the re-application will be only successful if the required documents or other sufficient evidence can then be presented. IV. Translation of documents (par. 2) The applicant can present all required documents in the language in which they were 23 originally issued that being the language of the judgment.24 The respondent has no right 21

22 23 24

Report Borrás note 107; Andrae, in: Nomos Kommentar BGB I Art. 38 note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 7. Report Borrás note 107; Andrae, in: Nomos Kommentar BGB I Art. 38 note 2. Andrae, in: Nomos Kommentar BGB I Art. 38 note 2. See OLG München IPRax 2016, 379 (381) with note Siehr IPRax 2016, 344 et seq. (Art. 39 certificate in Polish before German court is sufficient); see further Art. 39 note 10 (Magnus).

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to request the translation into the court’s language.25 But Art. 38 (2) entitles the court to request a translation into the court’s language. Despite the wording (“such documents”) which seems to refer only to the documents covered by Art. 38 (1) it is common ground that also the translation of the judgment in question can be required.26 The court has a wide discretion whether or not to request a translation. In case of doubt a translation, in particular of the judgment, should be required. From Art. 38 (2) the general principle can and should be inferred that the court or authority seized with the case in the enforcement state should always request a translation of the produced documents or of part thereof if else an informed and responsible decision on recognition or enforcement cannot be taken. 24 “A person qualified to do so in one of the Member States” must certify the correctness of the

translation, but not necessarily also personally deliver the translation. It is sufficient that this person guarantees the correctness of the translation by his or her certificate. The certifying person must have gained his or her qualification in a Member State. It need, however, neither be the judgment state nor the state where the recognition or enforcement is sought.27 The qualification must entitle the person to translate into or from the respective language for the purposes of court proceedings.28 Since the court is not obliged to require a translation it can also accept a translation whose correctness is not certified or which was made by a person without the required formal qualification.29 Although the rules on the certification of the correctness of the translation and on the required qualification offer a certain potential for misuse, no problems have been reported insofar. Nonetheless, the court must satisfy itself that the translation is reliable. V. Application of the Article to competent authorities 25 Art. 38 applies as well to cases where “competent authorities” like civil registries etc. are

concerned with the recognition or enforcement of judgments from other Member States on matrimonial matters or parental responsibility. Although the provision – in contrast to Art. 55 Brussels I Regulation – does no longer mention “the competent authority” it is clear from the definition of “court” in Art. 2 no. 1 Brussels IIbis Regulation that also other authorities are covered which have jurisdiction in the matters falling under the Regulation.30 And there is no reason why Art. 38 Brussels IIbis Regulation should not apply to competent authorities concerned with the recognition and enforcement of judgments from other Member States. The purpose of Art. 38 to facilitate the formal requirements for recognition proceedings among the Member States applies to those proceedings as well. Furthermore, the Brussels IIbis Regulation refers explicitly to the civil-status records in Art. 21 para. 2.

25 26

27

28 29

30

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Report Borrás note 108; Paraschas, in: Geimer/Schütze Art. 38 Brussels IIbis note 6. Andrae, in: Nomos Kommentar BGB I Art. 38 note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 8. See Report Borrás note 108; also Andrae, in: Nomos Kommentar BGB I Art. 38 note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 10. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 10. Andrae, in: Nomos Kommentar BGB I Art. 38 note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 10; with respect still to the Brussels Convention: BGH 26 September 1979, BGHZ 75, 167 and to the Brussels I Regulation: Kropholler/von Hein Art. 55 Brussels I Regulation note 3. See also Art. 2 note 4 (Pintens).

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VI. Reform The Recast Proposal suggests rather different rules on the production of documents and on 26 missing documents: Art. 38 Brussels IIbis Regulation shall be deleted. There is no longer a provision which entitles the court to dispense with the production of missing documents. The interested party has to present the judgment in question and the accompanying certificate.31 Default judgments shall be no longer separately regulated. In enforcement proceedings the relevant judgment and the respective certificate must be served on the respondent before enforcement can begin (Art. 35 Recast Proposal). In line with Art. 38 (2) sent. 1 Brussels IIbis Regulation, pursuant to the proposed Arts. 28 (2) and 34 (2) and (3) the court or other authority shall be entitled to request the party who relies on the judgment and/or certificate to provide a translation or transliteration. The language and the contents that can be requested for translation are regulated in Art. 69 (1) – (3) Recast Proposal. Furthermore, the person against whom enforcement is sought is entitled to request a translation into a language which he or she understands or into the official language or one of them (if there are more than one) at the place of his or her habitual residence (Art. 35 (2) Recast Proposal). Art. 38 (2) sent. 2 Brussels IIbis Regulation survives as new Art. 69 (4) Recast Proposal. Article 39: Certificate concerning judgments in matrimonial matters and certificate concerning judgments on parental responsibility The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility). I. II. III.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Issue of certificate 1. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.

2. Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4. Procedural questions . . . . . . . . . . . . . . . . . . . . 12 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. Contents and aim The Article obliges the competent court or authority of the Member State whose court has 1 rendered the judgment in question to issue a certificate in the form prescribed by Annex I or II if an interested party so requests. At the same time the interested party is entitled to such certificate which is necessary as a formal requirement for the recognition and enforcement of the judgment (see Art. 37 (1) (b)). With its reference to the Annexes the Article links the formal requirements with the standardised forms and serves thereby the aim of facilitating the recognition and enforcement procedure1 and of keeping formalities to a minimum. II. Legislative history The Article is almost identical with Art. 33 Brussels II Regulation and corresponds also to 2 31 1

See Arts. 28 (1), 34 (1), 53 Recast Proposal. See Recital (24).

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the former Art. 54 Brussels I Regulation and now to Art. 53 Brussels Ibis Regulation whereas the Brussels Convention did not yet foresee a comparable standardised proof of the main requirements for recognition. III. Issue of certificate 1. Competence 3 The law of the Member State in which the judgment was rendered determines which of its

courts or authorities is competent to issue the certificate.2 It will often be but need not necessarily be the court or authority that rendered the decision.3 The court or authority does not act ex officio but merely at the request of an interested party.4 Also the court seized with proceedings on recognition or enforcement is not obliged to provide the certificate ex officio.5 It has been suggested that certificates should generally be issued ex officio because in practice they are insufficiently used (lack of knowledge of the possibility and fear of costs).6 2. Entitlement 4 Each interested party is entitled to request the issue of the respective certificate. With respect

to judgments in matrimonial matters both spouses have that right. Also other persons, in particular children of the marriage, or public authorities can apply for the Annex I-certificate insofar as they are entitled to seek or contest the recognition of the judgment in matrimonial matters under Art. 21 (3)7 or to apply for its enforcement.8 With respect to judgments on parental responsibility either parent and the child are entitled. As the case may be, also the respective authority, as far as entitled as an interested party under Art. 28,9 may request the issue of the Annex II-certificate. 5 It has been argued that the interested person is, however, not entitled to request, and the

competent court or authority not obliged to issue, an Annex I or II-certificate if the judgment merely rejected the respective petition.10 This view is based on the argument that certificates should be issued only with respect to recognisable judgments and that a merely rejecting judgment could not be recognised.11 But even if one follows the prevailing view that 2

3

4 5 6 7 8 9 10 11

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Paraschas, in: Geimer/Schütze Art. 39 Brussels IIbis note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 39 note 4; equally for the corresponding Art. 53 Brussels Ibis Regulation: Mankowski, in: Magnus/Mankowski Art. 53 Brussels Ibis Regulation note 2; but contra: Spellenberg, in: Staudinger Art. 39 note 2 (only the court which rendered the decision is competent). With respect to Art. 53 Brussels Ibis Regulation: Mankowski, in: Magnus/Mankowski Art. 53 Brussels Ibis Regulation note 2. OGH (4 Ob 46/10h) Zak 2010/487, 279. OGH (4 Ob 46/10h) Zak 2010/487, 279. See Dutta StAZ 2011, 33 et seq. See thereto Art. 21 note 9 (Siehr). In this sense also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 39 note 3. See for comments Art. 28 note 8 (McClean). Rauscher, in: Rauscher Brussels IIbis Regulation Art. 39 note 2; Spellenberg, in: Staudinger Art. 39 note 1. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 39 note 2.

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Chapter III: Recognition and Enforcement

Article 39

merely rejecting judgments are not recognisable12 the interested person may have a legitimate interest to receive a certificate be it either for the recognition and enforcement of the decision on the costs or in order to show that, for instance, a marriage had continued or that paternity had been unsuccessfully contested. Since the Annex I-form (as well as the Annex II-form) does not specifically foresee a line for judgments which have rejected a petition, the issuing court or authority should insert as the case may be the remark “petition for divorce (resp. annulment/separation) rejected” in line 5. 3. 1., 5.3.2. or 5.3.3. of the form (which line indicates the type of judgment).13 Art. 39 specifies no time limit for the submission of the application for the Annex I- or 6 Annex II-certificate.14 Thus, the application can be brought even years after the judgment has been rendered. The form for the request under Art. 39 is governed by national law. 3. Certificate The contents of the certificate is standardised by Annex I and II. The certificate shows which 7 court or authority issued it, further which court delivered the judgment, whether the judgment was given in default, who, if any of the involved persons, was granted legal aid. The Annex I-certificate (on matrimonial matters) must in addition state the name, address 8 and birthdate of the spouses and the particulars of their marriage, whether the judgment concerned divorce, annulment or separation, whether it is subject to appeal and when it takes effect. It does, however, not state whether and when the judgment was served on the spouse against whom recognition or enforcement of costs is sought. The Annex II-form (on parental responsibility) requires the name, address and birthdate of 9 the person(s) with rights of access and of the persons holding parental responsibility, the name and birthdate of children covered by the judgment, the attestation of the enforceability and service of the judgment and specific information as the case may be on access arrangements or return orders. In contrast to Art. 41 (2) (b) and (c) no specific information is required whether the parties concerned and the child were given an opportunity of being heard. Lack of a sufficient possibility of being heard is, however, in itself a separate ground for non-recognition and consequently for a refusal of enforcement (Art. 23 (b) and d, Art. 31 (2)). The Annex II-form does not give information where the child had its habitual residence. The court competent for the issue of the certificate is not obliged to include such information nor can the applicant request a separate certificate on this question.15

12 13 14

15

See thereto Art. 22 note 4 (Siehr). For contrary arguments see Rauscher, in: Rauscher Brussels IIbis Regulation Art. 22 note 26 et seq. Andrae, in: Nomos Kommentar BGB I Art. 39 note 1; equally for the corresponding Art. 54 Brussels I Regulation: Kropholler/von Hein Art. 54 Brussels I Regulation note 3; also for the Brussels Ibis Regulation Mankowski, in: Magnus/Mankowski Art. 53 Brussels Ibis Regulation note 2. See indirectly AG Hamm (3 F 37/14) BeckRS 2014, 13983 which reports that the also involved Austrian court rejected an application under Art. 39 Brussels IIbis Regulation for an Annex II-certificate with the contents: “Der hauptsächliche Aufenthalt der beiden minderjährigen Kinder befindet sich beim Vater.” (“The primary residence of the two minor children is with the father.”).

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10 It is the underlying assumption of Art. 38 and 39 that the certificate is issued in the language

of the judgment.16 The same rule is explicitly provided for in Art. 41 (2) cl. 2 and Art. 42 (2) cl. 4 with respect to the certificates under Annex III and IV. This rule must also extend to the Annex I and II certificates. 11 The standardised format of the certificate will often but not necessarily always save a trans-

lation of the certificate and often also of the judgment into the language of the enforcement state. However, in case of doubt the court should certainly request a translation.17 The respondent has no separate right to insist on a translation. 4. Procedural questions 12 If an issued certificate is incorrect the interested party can request the issuing court or

authority to rectify it or to issue a new certificate in accordance with the law of the Member State where the issuing court or authority is located.18 Though Section 3 of this Chapter does not contain a provision comparable to Art. 43 according to which the law of the Member State of origin shall be applicable to any rectification this principle applies as well to certificates issued under Art. 39. In case the already issued certificate is lost the court or other competent authority is obliged to re-issue a new certificate. 13 If the court or authority refuses the issuance of the Annex I- or II-certificate the national

procedural law of appeal in the country of the court or authority applies. The specific appeal procedure provided for by Arts. 33 et seq. concerns exclusively the declaration of enforceability and is therefore not available for disputes concerning the issue of the Annex I- or IIcertificate. 14 Except for rectification an issued certificate cannot be separately attacked.19 Otherwise the

promptness of the enforcement procedure could be considerably impaired. IV. Reform 15 The Recast Proposal essentially maintains Art. 39 Brussels IIbis Regulation as new Art. 53

(1) and (2). However, for facilitating international proceedings, the new par. (2) adds the following new rule: Where a decision in matters of parental responsibility “involves a crossborder situation at the time of the delivery of the decision, the judge shall issue the certificate ex officio when the decision becomes enforceable, even if only provisionally. If the situation acquires a cross-border character only subsequently, the certificate shall be issued at the request of one of the parties.” 16

17 18

19

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See supra Art. 38 note 23 (Magnus); for a practical case see OLG München IPRax 2016, 379 with note Siehr IPRax 2016, 344 (Annex II-certificate in Polish fully sufficient in German proceedings). See also Art. 38 note 23 (Magnus). Recital (24) of the Brussels IIbis Regulation) requires that a possibility of rectification should be granted where there is a material error. But neither the Regulation nor the Recital defines in which way the rectification has to be effected. It is, however, more or less self-understanding that only the issuing court or authority is competent for any rectification and that this body acts according to its own law; in this sense also OLG Stuttgart IPRspr 2009 no. 250a. See explicitly Recital (24) of the Regulation.

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Chapter III: Recognition and Enforcement

Introductory remarks

Section 4: Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child

Introductory remarks Section 4 of Chapter III deals with two specific aspects of parental responsibility – the right 1 of access and the return of an abducted child – where the need for prompt recognition and direct enforceability of court orders is particularly urgent.20 The CJEU speaks of the aim of Arts. 40–45 “of ensuring expeditious enforcement of judgments”.21 Here, a ‘fast track’ enforcement is necessary because the lapse of time is particularly relevant for children and the contact to their parents. This follows from the overarching principle of this part, namely the protection of the best interests of the involved child.22 This maxim is addressed in Recitals no. 15 and 33 which latter explicitly refers to Art. 24 of the Charter of Fundamental Rights of the European Union according to which “the child’s best interests must be a primary consideration” and that “every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”23 The best interests of a child, the younger the child the more, require continuity and stability 2 of the relations to the person(s) factually caring for him or her, normally his or her parents. Any abrupt change of these relations can hurt the healthy development of the child. On the other hand children generally adapt rather fast to changed circumstances, and the faster the younger they are.24 It is therefore of utmost importance that decisions on those relations and the factual enforcement of such decisions are timely effected before new relations have been built up which then in turn would be interrupted. If rights of access or the return of a child are enforced only after such time that the child has already adapted to the new situation and/ or has established new relations to other persons the enforcement of a right of access or the return would – again – undermine the necessary continuity and stability of the relations to his or her caring person(s) and could destabilise the child’s development. With respect to the access to, and the return of, the child Arts. 40 et seq. therefore offer a far- 3 reaching novelty25 namely, a speedy alternative to the normal recognition and enforcement 20

21

22

23 24

25

See CJEU in Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 81; also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 4; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 239. CJEU (Case C-491/10 PPU) ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 47. This principle has been also stressed by the CJEU in Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 51. Referred to also by the Practice Guide p. 43 fn. 47. The specific importance of time for children is highlighted by the CJEU in Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 81. See also de Boer 64 (“betrekkelijk revolutionair”); Calvo Caravaca/Carrascosa González/Castellanos Ruiz note 60 (“gran novedad”); Baratta, in: Picone p. 195 (“regime speciale e privilegiato”).

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procedure. They establish “a uniform and simplified scheme of enforcement”26 as well as recognition. Arts. 41 and 42 abolish the possibility to attack access judgments and certain return judgments27 on grounds of non-recognition like the ordre public of the recognition or enforcement state; and in particular, they dispense with the exequatur procedure for judgments on parental responsibility which is regularly required under Arts. 28 et seq. – and which remains nonetheless available – but which may last some time. The situation where the right of access or the return of an abducted child is at stake does, however, not allow a longer delay.28 Nonetheless, the normal exequatur procedure remains available29 and must be observed for all decisions in matters of parental responsibility not covered by Art. 40 et seq. (for instance on custody), even if there is a particular urgency.30 4 The Section had no equivalent in the Brussels II Regulation. The principle of automatic

recognition without any intermediate proceedings was, however, already formulated as general aim of European procedural law by the European Council at its meeting in Tampere in 1999.31 The present Section is partly based on a French proposal for a separate Regulation on the enforcement of judgments on rights of access of 200032 which was then integrated into the Brussels IIbis Regulation.33 The formulation of the present text goes back to a proposal of the Council Presidency of 20 April 2003.34 A similar direct enforceability of titles of one Member State in all other Member States had been introduced also by Regulation No. 805/2004/EC creating a European Enforcement Order for uncontested claims. Since 2015 direct enforceability without exequatur is also provided for by the Brussels Ibis Regulation.35 5 The ‘fast track’ of Art. 40 et seq. replaces the normal enforcement procedure in the enforce-

ment state with a standardised certificate of enforceability issued by the judge who delivered the original judgment. In essence, the certificate shall be issued only if all parties involved and the child had been given an appropriate opportunity to be heard. The duly procedure and its control lies entirely in the hands of the courts of the Member State where the judgment was rendered. In the Member State of enforcement no appeal lies – neither against the original judgment nor against the certificate (Art. 43 (2)). Even the ordre public-defence cannot be raised except against the specific way the judgment is in fact enforced, for instance, that the actual enforcement of access or return would raise the real and serious danger of suicide of the child.36 The judgment must be treated and enforced as if a court of the enforcement state had rendered it (Art. 47 (2), however, with the exception of irrecon26 27

28 29 30

31 32 33 34 35 36

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CJEU (Case C-4/14) ECLI:EU:C:2015:5563 (Christophe Bohez v. Ingrid Wiertz) para. 52. See thereto Inga Rinau (Case C-195/08) (2008) ECR I-5271 and on this judgment Rieck NJW 2008, 2958 et seq. and Schulz FamRZ 2008, 1732 et seq. See with all desirable clarity: Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 76 et seq. Expressly Art. 40 (2). See CJEU (Case C-92/12 PPU) ECLI:EU:C:2012:255 (Health Service Executive v. S.C. and A.C.) para. 118 et seq. See also Recital (23) of the Regulation. OJ 2000 C 234/7; see thereto Heß IPRax 2000, 361; Bauer IPRax 2002, 179, 184 et seq. COM (2002) 222/2. 8281/03 JUSTCIV 62. See Arts. 39 Brussels Ibis Regulation et seq. In the same sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 8.

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Chapter III: Recognition and Enforcement

Article 40

cilable subsequent enforceable judgments).37 This implies a great deal of trust on the judge of origin and on the administration of justice in the judgment state.38 But this must be accepted in the interest of a rapid enforcement of the access or return decision. Moreover, the principle of mutual trust forms the fundament of the provisions on recognition and enforcement.39 The direct enforceability has been partly criticised. It has been argued that the standards 6 concerning the age from which on children are to be heard may considerably differ between the judgment state and the enforcement state. Under the Regulation the latter state is then nonetheless obliged to enforce a judgment even if the own standard is not met.40 Also the standard may vary as to when the child’s welfare will be endangered so that access or return should be prohibited. However, it may be doubted whether these standards in fact differ that much among the Member States and it can be expected that in the long run a rather uniform practice will develop, in particular, as the European Court for Human Rights has already formulated certain general standards for such cases in interpreting Art. 8 European Convention on Human Rights.41 For instance, it could be expected that an EU-wide practice develops that children are generally to be heard if they have reached the age of three when they already have their own preferences and can articulate them. It has been further criticised that the situation may arise that different measures ordered by a 7 judgment may have to be treated differently. For instance, a return order may have to be enforced under Art. 42 while the underlying decision on parental responsibility cannot be recognised and enforced because it manifestly offends the public policy of the enforcement state (Art. 23 (a));42 or that the access order in a judgment can be enforced under Art. 41 while the recognition and enforcement of the order on parental responsibility in the same judgment may be refused because of Art. 23 lit. a.43 That these problems can arise cannot be denied. However, discrepancies of public policy standards between Member States are probably less likely and frequent than the need for rapid enforcement of decisions on access and return. Article 40: Scope 1. This Section shall apply to: (a) rights of access; and (b) the return of a child entailed by a judgment given pursuant to Article 11 (8). 37 38 39 40

41

42 43

Paraschas, in: Bülow/Böckstiegel/Geimer/Schütze Art. 40 Brussels IIbis note 4. See Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 50. See Recital 21 of the Regulation and the ECJ in Inga Rinau (Case C-195/08) (2008) (ECR I-5271 para. 50.). See Coester-Waltjen FamRZ 2005, 241 (248); Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 5; Pirrung, in: FS Reinhold Geimer (2002), p. 701, (707); Rauscher EuLF 2005, I-37 (I-45). See, for instance, ECHR, 2 May 1978, no. 7770/77, DR 14, 175 (X.); ECHR, 22 June 1989, Série A 156, no. 71 (Eriksson). Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 5. Coester-Waltjen, in: FS Reinhold Geimer (2002), p. 139 (146); Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 5; Solomon FamRZ 2004, 1409 (1419).

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2. The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter. I. II. III.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . The covered judgments (par. 1) 1. General considerations . . . . . . . . . . . . . . . . . . 2. Judgments on rights of access (par. 1 (a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 IV. 3 5

V.

3. Certain judgments on the return of a child (par. 1 (b)) . . . . . . . . . . . . . . . . . . . . . . . 10 Relationship with the general procedure of recognition and enforcement (par. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. Contents and aim 1 Art. 40 delimits the material scope of application of the present Section and clarifies its

relationship to the general procedure of recognition and enforcement. Par. 1 defines that only judgments on the right of access and judgments ordering the return of a child in accordance with Art. 11 (8) are covered by the Section and enjoy the facilitated enforcement procedure of the Arts. 41 and 42. The ‘fast track’ procedure of direct enforcement is not available for other kinds of judgments. Par. 2 of the Article states that the Section does not exclude the normal procedure of recognition and enforcement under Arts. 21 et seq. II. Legislative history 2 The Article had no predecessor in the Brussels II Regulation or in the Brussels I Regulation.1

III. The covered judgments (par. 1) 1. General considerations 3 Generally, decisions on parental responsibility require the exequatur procedure under Arts.

28 et seq. Section 4 of Chapter III establishes an exception to this general procedure. The direct enforceability in the kind of a Europe-wide enforceable title is only available for the two situations envisaged in Art. 40 (1) where the need for rapid enforcement of decisions is of particular urgency.2 Because of the exceptional character the covered situations cannot be extended by way of analogy.3 Since they constitute exceptions, the interpretation of the provisions of the Section should be restrictive rather than extensive.

4 Though the provision speaks only of “rights of access” and “the return of the child” it

concerns exclusively judgments (as defined by Art. 2 no. 4) on those rights and – in specific cases – on the return of the child. Even the cost orders in the covered cases cannot be

1 2 3

378

As to its history see introductory remarks before Art. 40 note 4 (Magnus). See before Art. 40 note 1 et seq. (Magnus). See CJEU (Case C-92/12 PPU) ECLI:EU:C:2012:255 (Health Service Executive v. S.C. and A.C.) para. 118 et seq.; also Gottwald, in: MünchKommZPO Art. 40 Brussels IIbis Regulation note 2; Hüßtege, in: Thomas/Putzo Art. 40 EuEheVO note 1 and 2; Solomon FamRZ 2004, 1409 (1419).

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Chapter III: Recognition and Enforcement

Article 40

enforced in the way the underlying access and return judgment can be enforced (see Art. 49).4 2. Judgments on rights of access (par. 1 (a)) Section 4 applies first to judgments on “rights of access” (Art. 40 (1) (a)). The “right of 5 access” is partly defined by Art. 2 no. 10 and has to be understood in an autonomous-European sense.5 The same definition has to be used here. Not only does the definition include the right to repeatedly visit and see the child for specified periods of time at his or her place but also the right to take the child for a limited period of time to another Member State than that of his or her habitual residence. The right of access covers also distant communication between the child and the entitled person by mail, e-mail, phone, video conference etc.6 Contrary to the interpretation of the Brussels II Regulation which restricted the right of 6 access to the child’s parents7 the Brussels IIbis Regulation allows and requires a broader view. Not only can parents be entitled to access but also further persons like grandparents, siblings or other third persons with close factual relations to the child.8 Insofar, the law of the judgment state defines the circle of the entitled persons. It does not matter in which kind of proceedings the access judgment has been granted.9 7 Art. 41 (2) (a) makes it clear that even default judgments can be enforced in the facilitated way provided for by Art. 41.10 Then, in addition to the indications in the necessary certificate, sufficient service or waiver of it must be certified (Art. 41 (2) (a)). The CJEU held that even a penalty payment imposed in a judgment concerning rights of access – and the recovery of the penalty – follows the enforcement rules of the Brussels IIbis Regulation since the penalty is merely ancillary to the right of access.11 Therefore, a penalty ensuring the access rights can be directly enforced without exequatur in the enforcement state like the access judgment itself provided that the amount of the penalty has been finally determined by the court of origin.12 4 5 6

7

8

9

10

11 12

See thereto the comments on Art. 49 (McEleavy). See Art. 2 note 25 et seq. (Pintens). Art. 2 note 26 (Pintens); Practice Guide p. 43 (para. 3.6.2: “… any form of contact between the child and the other person, including for instance, contact by telephone, skype, internet or e.mail.”); Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 12; Rieck Art. 40 note 2. See Coester-Waltjen, in: Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 163 (168 et seq.); in the same sense also still Art. 45 (1) (a) of the Commission proposal (COM (2002) 222). Practice Guide p. 43; Art. 2 note 27 (Pintens); Benicke, in: Nomos Kommentar BGB I Art. 40 note 8; Coester-Waltjen FamRZ 2005, 241 (248); Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 143; but contrary, e.g., Finger FamRZ 2004, 234 (237). See also Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 8 et seq.; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 15. Also Benicke, in: Nomos Kommentar BGB I Art. 45 note 5; Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 8 et seq.; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 15. CJEU (Case C-4/14) ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 49 et seq. CJEU (Case C-4/14) ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 59 et seq.

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8 The ‘fast track’ procedure is only available if the access judgment is enforceable under the

law of the state whose court the judgment has granted; the required certificate according to Annex III must certify the enforceability.13 If the law of the judgment state provides for further forms of titles by which the right of access can be made enforceable, for instance, by an enforceable accord of the parents, such titles, too, have to be recognised and can be enforced in another Member State as provided for by Art. 41.14 The Section does, however, not cover judgments which merely reject a petition for access.15 Such judgments have no enforceable contents for which the ‘fast track’ procedure of Art. 41 should be available. Their recognition and enforcement – the latter with respect to costs – is governed by the general procedure (Arts. 21 et seq.).16 9 In order to be covered by Section IV the judgment on the right of access need not necessarily

concern a cross-border situation17 as Art. 41 (3) demonstrates. For the purposes of Art. 41 it suffices that the case becomes an international one after the judgment has been granted. 3. Certain judgments on the return of a child (par. 1 (b)) 10 The ‘fast track’ procedure is also available for a certain kind of judgments concerning the

return of an abducted child. These are return judgments rendered pursuant to Art. 11 (8).18 Section 4 covers therefore only return judgments of the courts or authorities at the child’s habitual residence in a Member State when the child has been abducted from there and the court or authority at the new place has already decreed a non-return judgment under Art. 13 of the Hague Convention on the Civil Aspects of International Child Abduction of 1980.19 The provision draws the consequence from Art. 11 (8) and Art. 60 lit. e Brussels IIbis Regulation which in combination state that with respect to return judgments between the Member States the Regulation takes precedence over conflicting judgments granted under the 1980 Hague Child Abduction Convention. However, the CJEU has made it quite clear that Arts. 40–45 do apply to return cases only where a non-return judgment has been already decreed.20 Also the certificate under Art. 42 (2) can be granted only where the requirement of two preceding conflicting judgments is met.21 The correctness of the CJEU’s interpretation of the text of the Regulation can hardly be doubted. But it should be questioned whether it is indeed necessary to employ the ‘fast track’ enforcement procedure only after a judgment requesting the return and a judgment denying the return has been rendered. Where both judgments request the return of the child the fast track procedure should be also available.22 13 14 15 16 17

18 19

20 21 22

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See Annex III under no. 8. Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 8 et seq. See Practice Guide p. 24; also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 12. See Practice Guide p. 24; also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 12. Calvo Caravaca/Carrascosa González/Castellanos Ruiz, Derecho de familia internacional, 3rd ed. 2005, note 60; Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 13. See also the comments to Art. 11 (8) in Art. 11 note 71 et seq. (Pataut). Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 69; Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 11; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 16. Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 69 et seq. Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 58 et seq. In this sense also Schulz FamRZ 2008, 1734 in a note to the Inga Rinau decision.

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Chapter III: Recognition and Enforcement

Article 40

But the requirement of two – generally conflicting judgments must at all be questioned. By this requirement the rapidity and effectiveness of the ‘fast track’ procedure is considerably weakened.23 The case history of Inga Rinau where proceedings of almost two years preceded the decision of the CJEU although this court delivered its decision after six weeks evidences that in fact no fast track return was effected (if the return was at all effected). A future amendment should therefore abolish this requirement of two return decisions. The return judgment must be enforceable under the law of the Member State whose court 11 granted it. This must be certified in the certificate issued under Annex IV. It remains, however, questionable whether this precedence is always justified. Art. 13 Hague 12 Convention establishes rather high hurdles for a non-return order and requires the court to take into account the situation and the interests of the child. The ‘fast track’ procedure under the Regulation which aims at the immediate restoration of the situation before the abduction almost at any price may not always and under all circumstances be in the best interests of the child. It may be further asked whether Art. 40 (1) (b) requires that the child be abducted into a 13 Member State and that a court of that Member State must have rendered a non-return judgment under Art. 13 of the 1980 Hague Child Abduction Convention.24 Though this may be the standard situation envisaged by Art. 40 (1) (b) it can be imagined that a child is abducted into a third state which also has ratified the Hague Convention and where a nonreturn judgment has been granted. If the child then comes into another Member State than from where it was abducted the facilitated enforcement procedure under Art. 42 for a return judgment of a court of the child’s state of origin should also be available. Other judgments ordering the return of the child than those under Art. 11 (8) are not 14 covered by Section IV. In particular, judgments which merely decree the return of the child without a foregoing judgment of non-return under Art. 13 Hague Convention on Child Abduction can only be enforced by way of the normal procedure under Arts. 28 et seq.25 IV. Relationship with the general procedure of recognition and enforcement (par. 2) Par. 2 of Art. 40 states that the general system of recognition and enforcement remains 15 available besides the ‘fast track’ system under Arts. 40 et seq. According to par. (2) the “holder of parental responsibility” is free to choose between both procedural ways.26 The entitled person need not advance certain reasons for one or the other way. Yet, the normal

23 24

25

26

For cautious scepticism in this direction see also Rieck NJW 2008, 2961. Despite Art. 60 lit. e Brussels IIbis Regulation the Hague Convention remains generally applicable; compare infra Art. 60 note 6 (Pirrung). That is the consequence of the decision in Inga Rinau (Case C-195/08) (2008) ECR I-5271; see also Gottwald, in: MünchKommZPO Art. 40 Brussels IIbis-Regulation note 3; Hüßtege, in: Thomas/Putzo Art. 40 note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 17; Rieck Art. 40 note 3. In the same sense Gruber FamRZ 2005, 1603, (1607); Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 12; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 18.

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Brussels IIbis Regulation

procedure under Art. 28 et seq. is preferable if requirements necessary under Art. 41 or 42 remain unclear or doubtful.27 16 The term “holder of parental responsibility” includes, as in Art. 2 no. 8, equally all persons

entitled to a right of access.28 V. Reform 17 Since the Recast Proposal suggests to generally abolish the exequatur procedure and to

introduce the system of direct enforceability,29 the present Art. 40 Brussels IIbis Regulation becomes superfluous and shall be deleted. Article 41: Rights of access 1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforcable, notwithstanding any appeal. 2. The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if: (a) where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally; (b) all parties concerned were given an opportunity to be heard; and (c) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. The certificate shall be completed in the language of the judgment. 3. Where the rights of access involve a cross-border situation at the time of the delivery of the judgment, the certificate shall be issued ex officio when the judgment becomes enforceable, even if only provisionally. If the situation subsequently acquires a cross-border character, the certificate shall be issued at the request of one of the parties. I. II. 27 28

29

382

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III.

Direct enforceability of access judgments (par. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hüßtege, in: Thomas/Putzo Art. 40 note 3. See supra Art. 2 note 21 et seq. (Pintens); Francq, Rev. trim. dr. fam. 2005, 691; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 40 note 18; also Paraschas, in: Geimer/Schütze Art. 40 Brussels IIbis note 13, however, suspecting a redaction error. See Art. 30 (1) Recast Proposal.

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Article 41

Chapter III: Recognition and Enforcement 1. 2. 3. 4. IV.

General principle . . . . . . . . . . . . . . . . . . . . . . . . 7 Automatic recognition . . . . . . . . . . . . . . . . . . 8 Direct enforceability . . . . . . . . . . . . . . . . . . . . . 10 Autonomously ordered enforceability (par. (1) cl. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Issue of certificate (par. 2) 1. In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3. Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4. Certificate a) Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 b) In particular: hearing of all persons concerned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

V. VI.

aa) Hearing of all parties concerned (par. (2) (b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 bb) Hearing of the child (par. (2) (c)) . . . . . . 27 c) Requirements in default cases (par. (2) (a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 d) Language of the certificate . . . . . . . . . . . . . . 31 e) Effect of the certificate . . . . . . . . . . . . . . . . . . 32 5. Procedural questions . . . . . . . . . . . . . . . . . . . . 34 Issue of the certificate ex officio or at request (par. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

I. Contents and aim The Article concerns judgments on access rights in the sense of Art. 40 (1) (a). The provision 1 aims at facilitating their recognition and enforcement; it grants that such judgments are to be automatically recognised and can directly – without any intermediate exequatur procedure – be enforced in other Member States. For this purpose Art. 41 (1) disallows any opposition in the enforcement state against the recognition of such judgments, even under the aspect of ordre public.1 Moreover and in particular, it dispenses with the declaration of enforceability by the courts of the enforcement state without which normally no judgment can be enforced in another Member State (Art. 28 et seq.). The underlying reason is to safeguard that access orders are not rendered futile by lengthy court proceedings. If the normal declaration of enforceability would be required it may only be granted after the ordered period of access has already lapsed; the declaration would then come too late.2 Taking further into account that children need stable and continuing relations on the one hand and adapt rather rapidly to new relations on the other,3 access must be rather promptly effected after, for instance, the child’s parents separated. Only then can an existing relationship be continued by access and does access not disturb relations the child has already established anew. To further the general aim of ‘fast track’ enforcement of access judgments Art. 41 (1) cl. 2 2 orders authoritatively that the court of origin may declare such judgment enforceable even where the law of the judgment state does not regard access judgments as enforceable. Instead of the declaration of enforceability in the enforcement state Art. 41 (2) requires the 3 issue of a certificate in the standardised form of Annex III to the Regulation in the judgment state. This provision is directed at the judge of origin and creates obligations for him/her. The judge must not issue the certificate unless the procedure in which the underlying access 1

2 3

See Benicke, in: Nomos Kommentar BGB I Art. 45 note 3; Hüßtege, in: Thomas/Putzo Art. 41 note 1; Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 1. The internal ordre public can become relevant only if the specific way of execution of the access judgment (e.g., danger of suicide of child if access is enforced etc) offends it; see also Art. 40 note 5 (Magnus). See Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 240. See before Art. 40 note 2 (Magnus).

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judgment was delivered complied with certain essential requirements of a fair procedure, in particular that all parties and the child had the opportunity to be heard. This has to be examined and certified by the judge of origin. 4 Art. 41 (3) deals with whether and when the Annex III certificate is to be issued ex officio or

at request. 5 However, the procedure under Art. 41 is optional (Art. 40 (2)). The normal procedure under

Arts. 21 et seq. and Arts. 28 et seq. is always instead available. Moreover, despite the binding effect of the judgment with the accompanying Annex III-certificate in the enforcement state the courts of the latter are granted a limited competence to make – thus far missing or insufficient – practical arrangements for organising the exercise of rights of access (Art. 48).4 II. Legislative history

6 The Article had no predecessor in the Brussels II Regulation or in the Brussels I Regulation.5

III. Direct enforceability of access judgments (par. 1) 1. General principle 7 All judgments on rights of access which are covered by Art. 40 (1) (a)6 have to be recognised

without any possibility of opposition and can be enforced without an exequatur procedure if the certificate under Annex III has been issued for those judgments. Then, each Member State has to treat an access judgment of another Member State like an own judgment (Art. 47 (2) cl. 1). This holds true even for a penalty payment imposed by a judgment concerning the right of access because the penalty is merely ancillary in order to safeguard the right of access.7 However, where the judgment concerns both right of access and custody only the part concerning the right of access can be immediately recognised (and directly enforced).8 The certificate replaces any control of the title in the other Member States. Yet, some grounds of non-recognition under Art. 23 reoccur as requirements for the issue of the Annex IIIcertificate by the court of origin (see further below notes 22 et seq.). However, neither the recognition nor the enforcement in another Member State can be refused because of one of the grounds of Art. 23,9 even not via an appeal against the Annex III-certificate.10 The certificate, if incorrect, can only be corrected in accordance with Art. 43.

4 5 6 7 8

9 10

384

See infra the comment to Art. 48 (McEleavy). As to its history see before Art. 40 note 4 (Magnus). As to those judgments see Art. 40 note 5 et seq. (Magnus). CJEU (Case C-4/14) ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 49 et seq. Dörner, in: Hk-ZPO Art. 41 EheGVVO note 2; Gottwald, in: MünchKommZPO Art. 41 Brussels IIbis Regulation note 1; Sengstschmid, in: Fasching/Konecny Art. 41 note 5; Solomon FamRZ 2004, 1409 (1419). Art. 31 (2) refers to Art. 23. Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 1.

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Article 41

2. Automatic recognition Art. 41 (1) prescribes the automatic recognition of access judgments;11 any Member State 8 must respect an access judgment of another Member State without any possibility of control or review of its enforceability. That rule applies whether recognition is separately sought or is only a precondition of enforcement. If the procedure under Arts. 40 et seq. is chosen and an Annex III-certificate applied for, the access judgment cannot be attacked on the grounds listed in Art. 23 nor is a separate petition for non-recognition admissible – neither in the judgment state nor in the recognition or enforcement state.12 As well no stay of proceedings under Art. 27 or Art. 35 can be granted in the recognition or enforcement state. The automatic recognition does, however, not hinder a decision by which a competent court 9 modifies the access order in accordance with the applicable national law.13 If the original access judgment has been meanwhile modified or quashed in the state of origin, for instance on appeal, it must be possible to rely on the new judgment (Art. 47 (2) cl. 2). Since Arts. 40 et seq. do not foresee any procedural means for such defence – in contrast to Arts. 27 and 35 – the defence must be admissible either wherever recognition of the original judgment is still sought or in the execution procedure which is governed by national law.14 That national law governs how the mentioned defence can be invoked is further supported by the fact that the Regulation mentions the issue of irreconcilability in the context of the scope of the applicable national law (Art. 47).15 The easiest solution would, however, be if the court of origin would issue the Annex III-certificate in such a case always ex officio and if a general principle would be acknowledged that only the most recent certificate counts. This latter rule should anyhow apply if there exists more than one certificate. 3. Direct enforceability Art. 41 (1) cl. 1 orders further that the enforcement of an access judgment does not require a 10 declaration of enforceability in the enforcement state. The normally necessary exequatur procedure in the enforcement state (Arts. 28 et seq.) is replaced by the Annex III-certificate which the court of origin issues. The control of the whole ‘fast track’ procedure is entrusted to the courts of the judgment state (although the courts of the enforcement state have to control whether the Annex III-certificate contains all necessary information). The enforcement state is obliged to enforce the access judgment like an own title (Art. 47 (2)). Again, no appeal under Art. 33 nor a stay of proceedings under Art. 35 is available.16 The only reason to 11

12

13 14 15 16

Recital (23); Benicke, in: Nomos Kommentar BGB I Art. 45 note 3; Dörner, in: Hk-ZPO Art. 41 EheGVVO note 1; Pirrung, in: Staudinger Vorbem zu Art. 19 EGBGB note C 164; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 4; Solomon FamRZ 2004, 1409, (1418). Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 4 and Art. 40 note 18; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 248; see also Commission Practice Guide p. 27. Similarly Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 4. Recital (23); Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 7. See thereto also Art. 47 note 17 et seq. (McEleavy). Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 1; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 248; differently Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 8 (stay according to lex fori admissible because the Regulation would not regulate this aspect for Art. 41. However, this

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refuse enforcement is the irreconcilability with a subsequent enforceable judgment (Art. 47 (2) cl. 2) irrespective whether this is a foreign or internal judgment.17 But it must be borne in mind that the Annex III-certificate shall evidence that the court of origin has observed fundamental safeguards of a fair process (service and right to be heard). 11 Though the issue of enforceability is exclusively governed by the Regulation the concrete

execution procedure follows entirely national law (see Art. 47).18 12 The direct enforceability of an access judgment does not preclude the courts of the enforce-

ment state from ordering practical arrangements for the exercise of the access rights if the access judgment does not sufficiently provide for such arrangements (see Art. 48 and the comment thereto). 4. Autonomously ordered enforceability (par. (1) cl. 2) 13 Under national law access judgments may not be enforceable as long as an appeal remains

possible or is already pending. This situation can lead to a considerably delayed enforcement of an access judgment. In order to avoid this effect19 Art. 41 (1) cl. 2 entitles the court of origin to grant enforceability in such a case even if the lex fori does not provide for this possibility. Insofar, the Regulation changes any contrary national law. It is self-understanding that despite its broad wording the provision applies only to courts in Member States and to judgments rendered by them. 14 Only the court of origin is competent to decide on the enforceability of an otherwise not yet

enforceable access judgment. Par. 1 cl. 2 gives the court a rather wide discretion.20 Enforceability may be ordered in particular if an appeal has poor prospects and/or is raised with the evident intention to delay effective access.21 15 It has been questioned whether Art. 41 (1) cl. 2 applies to merely internal cases, too.22 The

entire Section 4 of Chapter III is not confined to cases with an actual cross-border element but covers equally potential cross-border cases, as Art. 41 (3) shows, and any access case may rather easily become a cross-border case. In principle, these cases are therefore also covered by Art. 41 (1) cl. 2. From par. 3 sent. 1 and 2 it can be inferred that the parties are not entitled to the issue of an Annex III-certificate unless the case is, or has become, a cross-border case.23

17

18 19 20

21

22 23

386

would run counter the aim of the facilitated enforcement procedure and thus be irreconcilable with the effet utile of Art. 41). See thereto Art. 47 note 17 et seq. (McEleavy); Paraschas, in: Geimer/Schütze Art. 47 Brussels IIbis note 16. See the comments to Art. 47 (McEleavy). See Commission Practice Guide p. 33. Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 14. See also Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 14. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 12 et seq. Contra – court obliged to issue the certificate even if no cross-border situation is evident – Rieck Art. 41 note 5.

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Article 41

According to another view in a purely internal case it would be an incorrect exercise of its discretion if a court would declare an access judgment enforceable in contrast to the national law.24 IV. Issue of certificate (par. 2) 1. In general Par. 2 concerns the certificate addressed in par. 1, defines its prerequisites and prescribes that 16 the standardised form of Annex III to the Regulation must be used for the ‘fast track’ procedure concerning rights of access. The form of the Annex III-certificate is tailored for access judgments. But it has to be used 17 equally for enforceable authentic documents and agreements concerning rights of access (see Art. 46). In that case the judge issuing the certificate must adapt the Annex III-form to the document or agreement.25 2. Competence Only the “judge of origin” is competent to issue the Annex III-certificate. It is common 18 ground that no other institutions than those of the judgment state are entitled to issue the certificate.26 Certificates issued in other states have no effect and are a nullity. However, the further meaning of the formulation “judge of origin” is not entirely clear.27 The 19 wording contrasts with Art. 39 (“competent court or authority of a Member State of origin”) and with Art. 42 (2) (“judge of origin who delivered the judgment”). First, it should be certain that only a judge in the sense of Art. 2 no. 228 can issue the certificate.29 That means that not only a formal judge but also another person with judicial powers in matters of access is competent. A certificate merely certified by a court’s clerk does, however, not suffice.30 The underlying reason is that the issuing person must examine whether the requirements of

24 25

26

27

28 29

30

In this sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 13. Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 13; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 19. Benicke, in: Nomos Kommentar BGB I Art. 41, 42 note 5; Calvo Caravaca/Carrascosa González/Castellanos Ruiz note 60; de Boer p. 64; Frank, in: Gebauer/Wiedmann Art. 41 note 95; Hüßtege, in: Thomas/ Putzo Art. 41 note 2; Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 16; Schulz NJW 2004 Beil zu H. 18, p. 4; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 242. For a discussion, see in particular Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 15 et seq. See thereto Art. 2 note 4 (Pintens). Dörner, in: Hk-ZPO Art. 41 EheGVVO note 5; Gottwald, in: MünchKommZPO Art. 41 Brussels IIbis Regulation note 12; Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 15. Also Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 15.

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Art. 41 (2) are met. This should lie in the hands of a person qualified and authorised to exercise judicial powers. 20 The second ambiguity of the formulation “judge of origin” is more disputed. Is the judge

competent who has delivered the original judgment (as in Art. 42 (2))31 or is it left to the Member State to determine the competent judge (as in Art. 39)?32 The better reasons militate in favour of the first view. In case of doubt, the provisions of Section 4 should be interpreted in a uniform rather than a differing sense. But in particular the purpose of the whole Section to exceptionally abolish the exequatur procedure in the interest of the involved children requires that the responsible judge who has delivered the access judgment and who knows the case and the procedure best should issue the certificate. It is true that such self-control is no real control33 but the argument that the involved judge has the better knowledge and can be generally trusted has the greater weight. Yet, a qualification has to be made: it is generally though not necessarily the judge in person who has delivered the access judgment who must issue the certificate. That person may already have left the court when a later issue of the certificate is requested.34 Or, it may be a bench of several judges which has decided the access matter. Therefore, if it is not the same judge it must be at least a judge of the chamber or senate whose judge or judges delivered the access judgment who is competent to issue the certificate. 3. Entitlement 21 The party who is granted rights of access and who may seek their enforcement in another

Member State is certainly entitled to the Annex III-certificate irrespective whether the certificate is issued ex officio or at request (see par. 3). It is questionable whether any further person should be so entitled, too. The other parties involved including the child do need the certificate for practical purposes only insofar as they may wish to have the certificate corrected. For this reason they must, however, be entitled to the certificate as well. If the certificate is issued ex officio the judge has to provide not only the holder of the access rights but all involved parties with the certificate. 4. Certificate a) Contents 22 The certificate replaces the declaration of enforceability in the enforcement state. Its con-

tents is standardised by Annex III. The issuing judge bears the responsibility that the certificate is correct and that the attested facts are true. The certificate must show which court or authority issued it, further which court delivered the judgment, the name, address and birthdate of the person(s) with rights of access and of the person(s) holding parental responsibility, the name and birthdate of children covered by the judgment, the attestation of the enforceability of the judgment and, in case of a default judgment, service of the docu31

32

33 34

388

In this sense Meyer-Götz/Noltemeier FPR 2004, 296 (299); Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 17. In this sense apparently Benicke, in: Nomos Kommentar BGB I Art. 41, 42 note 20; Paraschas, in: Geimer/ Schütze Art. 41 Brussels IIbis note 11. See Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 17; Solomon FamRZ 2004, 1409 (1419). See infra notes 36 et seq.

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Article 41

ment instituting proceedings or instead acceptance of the decision. In particular, information on the sufficient opportunity of all parties and the child(ren) of being heard and information on any specific access arrangements must be certified. Finally, the certificate must state who, if any of the involved persons, was granted legal aid. b) In particular: hearing of all persons concerned Art. 41 (2) places particular weight on the proof that all parties concerned and the child were 23 given an opportunity to be heard. The judge of origin is only allowed to issue the certificate if these persons had the procedural possibility to present their view to the court. If the certificate contains this information the court of the recognition or enforcement state must trust it; the court is not entitled to further examine the correctness of the information although a direct contact to the judge of origin in order to clarify points of doubt is not forbidden. aa) Hearing of all parties concerned (par. (2) (b)) The certificate must attest that “all parties concerned” were given an opportunity to be 24 heard. All parties concerned is wider a term than all parties involved. It is open to question whether the law of the judgment state35 or the Regulation autonomously determines the circle of persons who must be heard. On the one hand it has to be admitted that in cases which are only of a potential cross-border nature it is a strong argument that the court which delivers the judgment sees no reason not to follow the law of its own country by which this court is bound. On the other hand, if the case is from the beginning on of an international character or acquires such character later the respective international Regulation, in this case the Brussels IIbis Regulation, must be observed. As far as possible the Regulation must be autonomously interpreted in order to found and justify the mutual trust on which it is built.36 The definitions in Art. 2 no. 7 and 8 and the provision of Art. 23 (d) provide sufficient material for such an interpretation. From them it can be deduced that not only the direct parties of the access procedure must be heard but also all persons who could be concerned in the sense of Art. 23 lit. d. Thus, persons who can claim that the access decision infringes their parental responsibility, for instance a grandparent with access rights or even a child care institution,37 must also be heard. On the other hand, the circle of concerned persons must not be stretched too far in order to not inhibit the whole access procedure. Therefore, only persons with a concrete and actual right of access or of parental responsibility must be given an opportunity to be heard. The procedural way of granting an opportunity to be heard and of the hearing itself is, 25 however, governed by the law of the judgment state.38 If needed, the procedures under Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters can and should be used.39 If the parties concerned were not given a sufficient possibility of being heard the certificate must not be issued. 35

36 37 38

39

In this sense: Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 26. See Recital (21). See further Art. 2 note 21 et seq. (Pintens). Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 27. Recital 20 (for the hearing of the child); Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 5; Winkler von Mohrenfels IPRax 2002, 372 (375).

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26 The possibility of being heard suffices; it is not required that the concerned persons in fact

used the possibility and expressed their views.40 bb) Hearing of the child (par. (2) (c)) 27 In proceedings concerning access it is a fundamental principle that the child should have a

chance to be heard41 unless the “age or degree of maturity” make a hearing inappropriate.42 Again, it is open to question whether the necessity of a hearing is governed by national law43 or by the Regulation itself.44 The latter view appears preferable. Where direct enforcement of a judgment in another Member State becomes possible – as in Art. 41 and in contrast to Art. 23 (b) without any examining procedure there – standards should be used which are acceptable in all Member States.45 This reason favours strongly an autonomous interpretation with respect to when a child has to be given the opportunity to be heard. Moreover, the right to be heard concerns fundamental rights granted by Art. 6 ECHR and by Art. 47 Charter of fundamental rights of the European Union. These instruments must also be understood in a uniform, non-national meaning. It can be drawn from insights of development psychology that even children of rather young age of about three years are able to form and express reasonable preferences with respect to access rights, be it even by nonverbal expression like gestures, mimic etc. The autonomous interpretation therefore requests that already rather young children have to be heard. If a certificate certifies that a child above the age of about three years was not heard because its hearing was held to be inappropriate then this can only be based on the argument that the child lacked the necessary degree of maturity because the child’s normal development was delayed. This should be made clear in the certificate. The Commission’s Practice Guide46 recommends that judges should include these reasons in their judgment. But as the judgment is generally not translated into the language of the enforcement state it is preferable to state the reasons for not hearing the child also in the certificate. The enforcement authority can then at least see that there were reasons to proceed in this way and can also request a translation of this part of the certificate (instead of a translation of the full judgment).

28 On the contrary, the procedural way in which the opportunity to be heard is to be effected is

again governed by national law and in addition by the Evidence Regulation.47 National law determines also the question whether the judge must personally hear the child or whether a hearing by a mandated social worker or other person suffices.48 The reference of Recital (no. 20) to the Evidence Regulation indicates that the Brussels IIbis Regulation accepts such 40

41 42

43 44

45 46 47 48

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Benicke, in: Nomos Kommentar BGB I Art. 45 note 7; Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 5. See Recital (19.). Positively confirming that Art. 41 (2) (c) Brussels IIbis Regulation complies with the requirements of the European Convention on Human Rights (Art. 8 and with the UN Convention on the Rights of the Child (Art. 12 (1)): Völker/Steinfatt FPR 2005, 415 et seq. In this sense: Paraschas, in: Geimer/Schütze Art. 41 Brussels IIbis note 5. In this sense: Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 28; Schlauß FPR 2006, 228 (231). See also Coester-Waltjen FamRZ 2005, 241, (248). Practice Guide p. 25; see further the comment to Art. 45 (Magnus). See supra note 25. In this latter sense Schlauß FPR 2006, 228, (231); Völker/Steinfatt FPR 2005, 415 (418 et seq.).

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Article 41

indirect hearing of the child. But in any event, the formulation “the child was given an opportunity to be heard” has to be understood to mean that the child in fact was seen by the judge or other authorised person. Then, it does not matter whether the child answered questions or articulated its own view. It does however not suffice, as ist he case with respect to the hearing of the other concerned persons, that the child, respectively its holder of parental responsibility, was invited to show up in court and did not use this opportunity. c) Requirements in default cases (par. (2) (a)) Contrary to the Commission’s original proposal49 the Regulation opens the ‘fast track’ 29 procedure even for default judgments. Default judgments require, however, further safeguards, namely that the defaulting party was not taken by surprise by the decision. Therefore, Art. 41 (2) (a) prescribes that in default cases the certificate must not be issued unless the defaulting person was correctly and timely served so that he or she could arrange for his or her defence or unless the defaulting person accepted the decision unequivocally. These requirements correspond to those listed in Art. 37 (2)50 and have to be understood in the same way.51 The issuing judge has to examine whether these requirements are met. Otherwise he has to 30 refuse the issue of the certificate. The Annex III-certificate itself contains a position (9.) for the statement that the requirements are met. d) Language of the certificate The Annex III-certificate has to be issued in the language of the judgment. Only point 12 of 31 the certificate (arrangements for the exercise of the right of access) must be translated into the language of the enforcement state (Art. 45 (2) first indent). It is, however, the task of the party seeking enforcement to provide an authorised translation of that passage of the certificate. As to the possibility to request a full translation see the comment to Art. 45. For the eventual translation of the reasons for not hearing the child see supra note 27. e) Effect of the certificate The certificate as such does not constitute an enforceable title.52 It takes effect only in 32 combination with the access judgment (see Art. 44). For all of the attested facts the certificate bears full proof unless proceedings for rectification 33 in accordance with Art. 43 have been instituted. On the other hand, if the certificate is incomplete, for instance, does not state that all parties concerned and/or the child were given an opportunity to be heard53 then it cannot found the basis for direct enforcement. The competent enforcement authority, for instance the bailiff, must refuse the enforcement.

49 50 51 52 53

COM (2002) 222: Art. 44. This provision refers in turn to a large extent to Art. 23 lit. c. See Art. 37 notes 18 et seq. (Magnus) and also Art. 23 note 23 et seq. (Siehr). Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 247. The Practice Guide p. 33 recommends that where the child has not been heard the reasons therefor should be stated in the certificate.

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5. Procedural questions 34 The Regulation does not foresee that the concerned persons have to be heard or otherwise to

be involved in the procedure – except the request in case of par. (3) – before the certificate is issued.54 Once the certificate has been issued, neither in the judgment state nor in the enforcement state can it be attacked by ordinary appeal (Art. 43 (2)). The only way of attack is the institution of rectification proceedings in the judgment state (Art. 43 (1)). This way is, however, only admissible if a statement in the certificate is incorrect.55

35 On the other hand, the access judgment is always subject to ordinary appeal in the judgment

state. Thus, a party who objects to an access order must attack that order in the judgment state. V. Issue of the certificate ex officio or at request (par. 3) 36 Art. 41 (3) provides that the certificate must be issued ex officio – to all parties concerned56 –

if the right of access involves a cross-border situation already at the time the access judgment is delivered.57 If the cross-border character develops later the certificate is issued only if so requested by one of the parties.58 Again, this provision serves the aim of facilitating the direct enforcement by saving time where it is clear at the time of decision that the court’s access order must be enforced in another Member State. Where no cross-border situation is apparent the certificate is, however, unnecessary and may be issued at request only if the situation changes and a cross-border character becomes apparent. If a party can advance reasonable evidence during the access proceedings that the case will soon after the judgment acquire an international dimension she or he may anyway request the issue of the certificate which the judge then must issue. 37 A cross-border situation exists if the access must be effected and enforced in another Mem-

ber State, be it that either the child or the person entitled to access is living there.59 Even if the entitled person has her or his habitual residence in a Non-Member State does Art. 41 (3) apply as long as the access must be enforced in another Member State.60 A merely potential cross-border situation does not oblige the judge to issue the certificate ex officio.61 In such a 54 55 56 57

58

59

60

61

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Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 23. See Recital (24) (“material error”); see also comment to Art. 43 (Magnus). See also supra note 21. It has been discussed – but correctly denied – whether it suffices that the cross-border situation ensued after the delivery of the judgment but before the judgment became (provisionally) enforceable; see Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 30. Again, all parties concerned are entitled to the certificate (supra note 21); but contra – only the direct addressee of the judgment is entitled – Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 34. Also De Boer p. 64a; Gottwald, in: MünchKommZPO Art. 41 Brussels IIbis Regulation note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 31. See Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 31 fn. 52 with the example of a divorced German couple where the former husband and father lives in the US while the mother and the child live in France. A German access judgment has then to be enforced in France. The German judge must issue the Annex III-certificate ex officio. Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 32.

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case if, for instance, a party seriously plans to move to another state the interested party can always request the issue of the certificate.62 The certificate shall be issued not earlier than the judgment becomes – at least provisionally – 38 enforceable. Where national law does not provide for the (provisional) enforceability of access judgments the judge has to exercise the discretion under Art. 41 (1) cl. 2 and may declare the judgment as provisionally enforceable.63 VI. Reform The Recast Proposal suggests that the system of Arts. 40 – 45 Brussels IIbis Regulation be in 39 essence generalised. The present Art. 41 will be in principle maintained in Art. 30 (2), Art. 38 (2) and Art. 53 (2) Recast Proposal. Article 42: Return of the child 1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures. The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)). The certificate shall be completed in the language of the judgment. I. II. III.

62

63

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Direct enforceability of return judgments (par. 1) 1. General principle . . . . . . . . . . . . . . . . . . . . . . . . 6

IV.

2. Automatic recognition . . . . . . . . . . . . . . . . . . 7 3. Direct enforcement . . . . . . . . . . . . . . . . . . . . . . 9 4. Autonomously ordered enforceability (par. (1) cl. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Issue of certificate (par. 2) . . . . . . . . . . . . . . . . 13

Also Gottwald, in: MünchKommZPO Art. 41 Brussels IIbis Regulation note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 41 note 32. See supra notes 13 et seq.

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Article 42 1. In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4. Certificate a) Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 b) Particular requirements: hearing aa) Hearing of the child (par. (2) (a)) . . . . . . 19 bb) Hearing of the parties (par. (2) (b)) . . . 20 c) Requirements in default cases . . . . . . . . . . 21

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V.

d) Taking account of the decision under the Hague Convention (par. (2) (c)) . . . 22 e) Information on specific measures for the protection of the child . . . . . . . . . . 23 f) Language of the certificate . . . . . . . . . . . . . . 24 g) Issue of certificate ex officio . . . . . . . . . . . . 25 h) Effect of the certificate . . . . . . . . . . . . . . . . . . 26 5. Procedural questions . . . . . . . . . . . . . . . . . . . . 28 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. Contents and aim 1 The Article concerns specific judgments in the sense of Art. 40 (1) (b) namely, judgments

which order the return of an abducted child after a prior decision under the 1980 Hague Child Abduction Convention has refused the return.1 Other return judgments are not covered by the Article.2 Whereas the Regulation generally acknowledges the priority of this Convention,3 in case of conflicting judgments Arts. 11 (8) ensures the priority of return judgments by courts competent under the Regulation; Art. 42 supports this priority by providing a ‘fast track’ recognition and enforcement procedure for these judgments (a system of “expeditious enforcement of judgments”).4 Like the parallel Art. 41 which reference can be made to in many respects the present provision aims at facilitating the recognition and enforcement of these particular return judgments and grants their automatic recognition and direct enforceability in other Member States. In order to achieve this purpose Art. 42 (1) disallows, like Art. 41 (1), any opposition in the enforcement state against the recognition of such judgments,5 even under the aspect of ordre public,6 and dispenses with the declaration of enforceability by the courts of the enforcement state. The underlying reason is, like in access cases, to safeguard that return orders are not rendered futile by lengthy court proceedings. The exequatur procedure in the enforcement state can delay the return of the child for so long that a return would disturb the child’s new relations at the place of abduction and could infringe the best interests of the child.7 It can then become necessary to refuse the child’s return only because of lapse of time. Therefore, like in access cases, a return order should be promptly executed. Besides the interests of the child also the interests of the person holding the parental responsibility play a role as well as the argument that the abductor shall not triumph. 1

2 3 4

5 6

7

394

See Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 58 et seq.; see thereto also Art. 40 notes 3 et seq. (Magnus). Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 2. See Recital 17; Art. 11; see further Solomon FamRZ 2004, 1409 (1416). CJEU (Case C-491/10 PPU) ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 47. See Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 68 et seq. See Benicke, in: Nomos Kommentar BGB I Art. 41, 42 note 23; Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 4. The internal ordre public can become relevant only if the specific way of execution of the return judgment (e.g., danger of suicide of the child if the return is enforced etc) offends it; see also note 2 before Art. 40 (Magnus). See notes 1 et seq. before Art. 40 (Magnus).

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Article 42

To further support the aim of a ‘fast track’ enforcement of the pre-mentioned return judg- 2 ments Art. 42 (1) cl. 2 enables the court of origin to declare such judgment – provisionally – enforceable even where the law of the judgment state does not provide for such a possibility. Like in Art. 41 a certificate in the standardised form of Annex IV replaces the normally 3 necessary declaration of enforceability in the enforcement state. Art. 42 (2) is directed at the judge of origin and creates obligations for him/her. The judge must not issue the certificate unless the procedure in which the underlying return judgment was delivered complied with certain essential requirements, in particular that all parties and the child had the opportunity to be heard. This has to be examined and certified by the judge of origin.8 However, the procedure under Art. 42 is optional (Art. 40 (2)). The normal procedure under 4 Arts. 21 et seq. and Arts. 28 is always instead available.9 II. Legislative history Like all Articles of Section 4 also this Article had no predecessor in the Brussels II Regulation 5 or in the Brussels I Regulation.10 III. Direct enforceability of return judgments (par. 1) 1. General principle Judgments which order the return of a child under the circumstances defined by Art. 40 (1) 6 (b)11 have to be recognised without any possibility of opposition and can be enforced without an exequatur procedure if the certificate under Annex IV has been issued for those judgments. The CJEU has further held that the enforcement of such a judgment “in no way” depends on the prior adoption of a judgment on custody.12 Given these conditions, each Member State (except Denmark) has to treat a return judgment of another Member State like an own title (Art. 47 (2) cl. 1). In principle, the return order must be enforceable; but even if it is not, the court of origin may declare it enforceable (Art. 42 (1) cl. 2). Like in Art. 41 the certificate replaces any control of the title in the other Member States. Yet, some grounds of non-recognition under Art. 23 reoccur as requirements for the issue of the Annex IVcertificate through the court of origin (see further below note 18 et seq.). However, neither the recognition nor the enforcement in another Member State can be refused because of one of the grounds of Art. 23,13 even not via an appeal against the Annex IV-certificate.14 The certificate, if incorrect, can only be corrected in accordance with Art. 43.

8 9 10 11 12 13 14

See also Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 67. Also Gottwald, in: MünchKommZPO Art. 42 Brussels IIbis Regulation note 2. As to its history see before Art. 40 note 4 (Magnus). As to those judgments see Art. 40 notes 10 et seq. (Magnus). CJEU (Case C-211/10 PPU) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 54. Art. 31 (2) refers to Art. 23. Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 1.

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2. Automatic recognition 7 The same rules as under Art. 41 (1) apply also here: Art. 42 (1) obliges the Member States to

automatically recognise the covered return judgment of another Member State (when accompanied by the necessary Annex IV-certificate) without any possibility of control or review of its enforceability.15 That rule applies whether recognition is separately sought or is only a precondition of enforcement. Moreover, the return judgment cannot be attacked on any of the grounds listed in Art. 23 nor is a separate petition for non-recognition admissible – neither in the judgment state nor in the recognition or enforcement state.16 As well no stay of proceedings under Art. 27 or Art. 35 can be granted. 8 If the original return judgment is irreconcilable with a subsequent enforceable judgment, for

instance because the return judgment has been meanwhile quashed in the state of origin, it must be possible to invoke this fact in the enforcement state (Art. 47 (2) cl. 2). Since Arts. 40 et seq. do not foresee any procedural means for such defence – in contrast to Arts. 27 and 35 – the defence must be admissible wherever automatic recognition of the original judgment is claimed as well as in the execution procedure which is governed by national law.17 3. Direct enforcement 9 Art. 42 (1) cl. 1 dispenses in the same way as Art. 41 (1) sent 1 with a declaration of

enforceability in the enforcement state. The exequatur procedure (Arts. 28 et seq.) is replaced by the Annex IV-certificate which the court of origin must issue. The control of the whole ‘fast track’ procedure is entrusted to the courts of the judgment state. The enforcement state is obliged to enforce the return judgment like an own title (Art. 47 (2)). Again, no appeal under Art. 33 nor a stay of proceedings under Art. 35 is available.18 The only formal reason to refuse enforcement under the Regulation is the irreconcilability with a subsequent enforceable judgment (Art. 47 (2) cl. 2) irrespective whether it is a foreign or internal judgment.19

10 However, although the issue of enforceability is exclusively governed by the Regulation the

concrete execution procedure follows entirely national law (see Art. 47).20 In general, this dichotomy should not be allowed to undermine the aim of Art. 42, namely a prompt and direct enforcement of the return judgment. But if a child objects vehemently against the factual return, for instance threatens with suicide, it will be a question of the national law (ordre public) and also of overriding principles of the ECHR, Art. 6 EU Treaty and the Charter of Fundamental Rights of the European Union whether corporeal force should then 15

16 17 18 19

20

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CJEU (Case C-92/12 PPU) ECLI:EU:C:2012:255 (Health Service Executive v. S.C., A.C.) paras. 116 et seq.; CJEU (Case C-491/10 PPU) ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 48; further Benicke, in: Nomos Kommentar BGB I Art. 41, 42 note 23; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 4; Solomon FamRZ 2004, 1409 (1418). See Art. 41 notes 7 et seq. (Magnus). Apparently also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 9. See Art. 41 note 10 (Magnus). See thereto Art. 47 note 17 et seq. (McEleavy); Paraschas, in: Geimer/Schütze Art. 47 Brussels IIbis note 16. See the comments to Art. 47 (McEleavy).

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Article 42

be used to return the child. The personality rights of the child have to be respected. They may exclude an enforced return in such a situation. Here, the cooperation envisaged in Art. 53 et seq. Brussels IIbis Regulation should be sought. Where the child remains a year or longer in the Member State whereto he or she was 11 abducted or retained then the courts of that state can acquire jurisdiction and can themselves decide on the return of the child (Art. 10). For Art. 42 this possibility does not play a role since Art. 10 requires that the person having the rights of custody has not lodged a request for the return of the child. Art. 42 presupposes on the contrary that the return has been requested and refused and in principle covers no other return decisions.21 The fast track enforcement procedure via the certificate should however be also available where two judgments from different Member States order the return of the child. In this case the fast track is all the more so justified.22 4. Autonomously ordered enforceability (par. (1) cl. 2) Again, reference can be made to the principles under Art. 41 (1) cl. 2 which apply here as 12 well: Where national law does not accord provisional enforceability to return judgments the court of origin is given a rather wide discretion to declare the judgment enforceable, irrespective of any possibility of appeal either in the Member State of origin or of enforcement.23 Enforceability may be ordered in particular if an appeal has poor prospects and/or is raised with the evident intention to delay an effective return.24 IV. Issue of certificate (par. 2) 1. In general Par. 2 concerns the certificate addressed in par. 1. The certificate can only be issued if the 13 listed requirements are met. Insofar it must be taken into account that Art. 40 (1) lit. b restricts the scope of the whole Section to return judgments “given pursuant to Art. 11 (8)”. That means that there must be two – generally conflicting – judgments of different Member States on the return of the child.25 Only then the judge is entitled to grant a certificate under Art. 42 (2). But further appeals or other legal proceedings on the return in the Member State to which the child was abducted do not matter for the issue of the certificate.26 It must however be stated that except for a mere rectification of typing or similar errors (Art. 43) there lies no remedy against an incorrectly granted certificate which does not observe the

21

22 23

24 25 26

OLG München IPRax 2016, 379 (single return judgment does not suffice); OGH IPRax 2014, 543 (546); OLG Celle FamRZ 2007, 1587 (1588); Dörner, in: Hk-ZPO Art. 42 EheGVVO note 2; Gottwald, in: MünchKommZPO Art. 42 Brussels IIbis Regulation note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 2. See also Schulz FamRZ 2008, 1734 in a note to the Inga Rinau decision of the ECJ. CJEU (Case C-92/12 PPU) ECLI:EU:C:2012:255 (Health Service Executive v. S.C., A.C.) paras. 128 et seq.; Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 84. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 6 (warning against too quick return). See Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 59 et seq. Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 89.

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requirements of Art. 42 (2).27 The provision further prescribes that the standardised form of Annex IV must be used for the ‘fast track’ procedure concerning return judgments. 14 The CJEU held that also the issue of the certificate in no way requires the prior adoption of a

judgment on custody.28 Furthermore, Art. 42 (2) does not apply to authentic documents and agreements (Art. 46) since the basic Art. 11 (8) requires a judgment.29 2. Competence 15 The “judge of origin who delivered the judgment” is competent to issue the Annex IV-

certificate. Like under Art. 41 (2) the certificate must be issued in the judgment state.30 Certificates issued in other states have no effect and are a nullity. Furthermore, only a judge can issue the certificate.31 16 Contrary to Art. 41 (2) it is clear from the wording of Art. 42 (2) that that judge is competent

who delivered the judgment.32 However, that does not mean that only this judge in person can issue the certificate. Where, for instance, a bench of several judges decided it must suffice that a judge of the chamber or senate whose judge or judges delivered the return judgment issues the certificate. 3. Entitlement 17 At least the party who may seek the enforcement of the return judgment is entitled to the

Annex IV-certificate.33 Like under Art. 41 (2) it is questionable whether any further person should be also entitled to the certificate. The other parties involved including the child do need the certificate for practical purposes only insofar as they may wish to have the certificate corrected. For this reason they must, however, be entitled to the certificate as well. Since the certificate is issued ex officio34 the judge has to provide not only the person entitled to request the return of the child but all involved parties with the certificate. 4. Certificate a) Contents 18 There are only few differences to Art. 41 (2). The certificate replaces likewise the declaration

of enforceability in the enforcement state. Its contents is standardised by Annex IV. Again, the issuing judge bears the responsibility that the certificate is correct and that the attested facts are true. The certificate must show which court or authority issued it, further which court delivered the return judgment, date and reference number of the judgment, the name, address and (if available) birthdate and -place of the person to whom the child has to be 27 28 29 30 31 32 33 34

398

See Art. 43 and also Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 84 et seq. CJEU (Case C-211/10 PPU) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 54. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 8. Also Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 8. See Art. 41 notes 18 et seq. (Magnus). In the sense that only that judge is competent: Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 8. Also Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 3. See infra note 25.

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Article 42

returned and of the person(s) holding parental responsibility, the name and birthdate of the child(ren) covered by the judgment, the attestation that the judgment entails the return and is enforceable. In particular, information on the sufficient opportunity of all parties and the child(ren) of being heard and information on any specific measures for the protection of the child after its return must be certified. It must be further attested that the reasons for andevidence underlying the decision issued pursuant to Art. 13 Hague Abduction Convention have been taken into account.35 Finally, the certificate must state who, if any of the involved persons, was granted legal aid. b) Particular requirements: hearing aa) Hearing of the child (par. (2) (a)) As in cases concerning rights of access it is equally a fundamental principle in return cases 19 that the child has to be given an opportunity to be heard36 unless the “age or degree of maturity” makes a hearing inappropriate. With respect to the hearing of the child full reference can be made to the respective comment to Art. 41.37 bb) Hearing of the parties (par. (2) (b)) Whereas Art. 41 (2) (b) requires that “all parties concerned” must be heard Art. 42 (2) (b) 20 confines the circle of persons who have to be given this opportunity to “the parties”. That has to be understood that in return cases only the direct parties of the dispute must be heard.38 In contrast to access disputes, where the access rights of one person more or less necessarily affect the access rights of all other holders of access rights, in return cases of the kind covered by Art. 42 only the abductor and the person requesting the return of the child are the directly involved parties. For the further details concerning the hearing of these persons it can be referred to the comments to Art. 41.39 c) Requirements in default cases Contrary to Art. 41 (2) (a) the present Article does not mention the specific requirement that 21 in case of default judgments the defaulting party must have been duly served or must have acquiesced to the decision. It is hardly imaginable that a party of the return dispute was neither served in the proceedings under the Hague Abduction Convention nor in the subsequent proceedings under the Regulation (Art. 11 (8)).40 But if so, Art. 41 (2) (c) should be applied by analogy.41 It would offend fundamental principles of general European private 35 36 37 38 39 40

41

See infra note 22. See Recital (19.). Art. 41 notes 27 et seq. (Magnus). Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 14. Art. 41 notes 24 et seq. (Magnus). Although it must not be necessarily the same person who was the defaulting party in the proceedings under the Hague Convention and under the Regulation. But cf. – service unnecessary because of possibility to be heard in prior procedure – Benicke, in: NomosKommBGB I Art. 41, 42 note 11; Gottwald, in: MünchKommZPO Art. 42 Brussels IIbis Regulation note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 15 who argues that the service requirement is merged in the hearing requirement. In his view the later hearing shall evidently heal lacking service or acquiescence. But then the separate service requirement in Art. 41 (2) (a) would be superfluous since it would be always contained in the hearing requirement of Art. 41 (2) (b) and (c).

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procedural law if a return judgment could be directly enforced under Art. 42 although it was given in default and although the defaulting party was not duly served and did not unequivocally accept the decision. d) Taking account of the decision under the Hague Convention (par. (2) (c)) 22 According to par. (2) (c) the certificate must further attest (under point 13 of the Annex IV

form) that the court when issuing its judgment has taken into account the reasons for and evidence underlying the decision issued pursuant to Art. 13 Hague Abduction Convention. This Article of the Hague Convention allows the court to refuse the return of a child on few specific grounds, in particular because the return would severely endanger the child. The Regulation requires that the court of origin discusses why the decision under the Hague Convention refused the return. This must also be certified. Par. 2 (c) requires regularly more than that the certificate merely states that the reasons and the evidence for the refused return were taken into account by the (second) judgment. The judge issuing the certificate should state in the certificate why the court in its – overruling – judgment held that the prior decision under the Hague Convention was unconvincing.42 If the judgment did not discuss the reasons and evidence of the contrary decision issued under the Hague Convention the judge is not entitled to issue the certificate.43 e) Information on specific measures for the protection of the child 23 In case the court of origin or any other authority of the judgment state has taken measures to

ensure the protection of the child after its return to the state of its habitual residence then the judge issuing the certificate has also to state the details of those measures under point 14 of the certificate. For this point a translation must be provided by the party seeking enforcement (Art. 45 (2) second indent). f) Language of the certificate 24 Par. 2 cl. 4 provides that the Annex IV-certificate is to be completed and issued in the

language of the return judgment. Only point 14 of the certificate must be translated into the language of the enforcement state (Art. 45 (2) second indent). To produce a translation is, however, not the task of the judge who issues the certificate but of the party who seeks the enforcement of the judgment.44 g) Issue of certificate ex officio 25 According to Art. 42 (2) cl. 3 the Annex IV-certificate has to be issued ex officio45 since return

cases have always a cross-border character and therefore require that the certificate is immediately issued. h) Effect of the certificate 26 Like in all other cases where the Regulation requires that a certificate is necessary this 42

43 44 45

400

See Dörner, in: Hk-ZPO Art. 42 EheGVVO note 7; Gottwald, in: MünchKommZPO Art. 42 Brussels IIbis Regulation note 6; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 16; Sengstschmid, in: Fasching/Konecny Art. 42 note 27 et seq. Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 16. See further Art. 45 note 16 (Magnus). De Boer p. 64a; Paraschas, in: Geimer/Schütze Art. 42 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 42 note 17; Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 254.

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Chapter III: Recognition and Enforcement

Article 43

document as such does not constitute an enforceable title.46 It takes effect only in combination with the respective judgment (see Art. 44). The certificate bears full proof for the attested facts unless proceedings for rectification in 27 accordance with Art. 43 have been instituted. If the certificate is incomplete, for instance, does not state that the parties and/or the child were given an opportunity to be heard47 then it cannot found the basis for direct enforcement. The competent enforcement authority, for instance the bailiff, must refuse the enforcement. 5. Procedural questions The proceedings for the issue of the certificate do not require that the persons who are 28 entitled to the certificate have to be heard or otherwise to be involved before the certificate is issued. If the certificate has been issued neither in the judgment state nor in the enforcement state can it be attacked by ordinary appeal (Art. 43 (2)). The only way of attack is the institution of rectification proceedings in the judgment state (Art. 43 (1)). This way is, however, only admissible if a statement in the certificate is incorrect.48 Where a certificate has been granted it can also not be attacked by an application not to recognise the underlying judgment.49 Such an application is inadmissible.50 Otherwise the practical effect of the certificate would be considerably diminished.51 On the other hand, the return judgment is always subject to ordinary appeal in the judgment 29 state. Thus, a party who objects to a return order must attack that order in the judgment state. V. Reform The Recast Proposal of 2016 maintains the essence of Art. 42 Brussels IIbis Regulation as 30 new Art. 38 (2) and Art. 53, 2–6. Article 43: Rectification of the certificate 1. The law of the Member State of origin shall be applicable to any rectification of the certificate. 2. No appeal shall lie against the issuing of a certificate pursuant to Articles 41(1) or 42(1). I. II. III. 46 47

48

49 50 51

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Rectification (par. 1)

1. Meaning of rectification . . . . . . . . . . . . . . . . 3 2. Rectification procedure . . . . . . . . . . . . . . . . . 5 3. Effect of rectification . . . . . . . . . . . . . . . . . . . . 9

Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 247 and 258. The Practice Guide p. 33 recommends to state the reasons in the certificate where the child has not been heard. See Recital (24) (“material error”); see also Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 257; comment to Art. 43 (Magnus). See Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 97. Inga Rinau (Case C-195/08) (2008) ECR I-5271 paras. 108 et seq. See also Schulz FamRZ 2008, 1734 in a note to the Inga Rinau decision of the ECJ.

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Article 43 IV.

No appeal (par. 2) 1. No appeal admissible against the issue of the certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brussels IIbis Regulation

V.

2. Appeal admissible against refusal to issue certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Contents and aim 1 The Article aims at solving certain procedural questions which the issuance of the Annex

III- and Annex IV-certificate may raise. First, there must be a procedure for the rectification of the certificate. According to par. (1) the law of the Member State of origin governs this procedure. Second and more important, the provision orders that except for rectification no separate appeal shall lie against the issue of the certificate (par. (2)).1 Otherwise, the aim of facilitating the enforcement of an access or return judgment could be easily frustrated by attacking the issue of the certificate on other grounds than rectification. Insofar, any national law which would allow such an appeal is abrogated. However, the rectification procedure does not exclude to challenge the authenticity of the certificate where justified doubts exist,2 for instance, that the certificate is a forgery und thus a nullity.3 Nor does Art. 43 (2) hinder proceedings – in the state of origin – for the issuance of the certificate.4 II. Legislative history 2 Art. 43 belongs also to those Articles which had no predecessor in the Brussels II Regulation

or in the Brussels I Regulation.5 III. Rectification (par. 1) 1. Meaning of rectification 3 The only remedy against an Annex III- or Annex IV-certificate which has been issued is its

rectification. What rectification means must be autonomously determined since otherwise the borderline to the excluded appeal could not be precisely drawn.6 The Regulation gives a rather clear hint in Recital (24) that a certificate “should be rectified only where there is a 1

2 3

4 5 6

402

See also CJEU (Case C-211/10 PPU) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 70: “As is clear from Recital 24 and Articles 42 (1) and 43 (2) of the Regulation, the issue of the certificate is not subject to appeal, and a judgment thus certified is automatically enforceable, there being no possibility of opposing its recognition.”; Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 85: “By excluding any appeal against the issuing of a certificate pursuant to Article 42 (1), other than an action seeking rectification within the meaning of Article 43 (1), the Regulation seeks to ensure that the effectiveness of its provisions is not undermined by abuse of the procedure.” See Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 88 et seq. See also Benicke, in: NomosKommBGB I Art. 43 note 10; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 8 (certificate by another person than a judge or for a judgment that does not fall under Arts. 41 or 42). See Benicke, in: NomosKommBGB I Art. 43 note 12. As to its history see before Art. 40 note 4 (Magnus). For an autonomous determination evidently also Benicke, in: NomosKommBGB I Art. 43 note 2; Gottwald, in: MünchKommZPO Art. 43 Brussels IIbis Regulation note 1; Paraschas, in: Geimer/Schütze

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material error, i.e. where it does not correctly reflect the judgment.”7 Therefore, rectification can be requested only where the contents of the certificate is incorrect, for instance where it contains wrong parties or names, misspellings, wrong dates or wrong modalities of access8 or return. The same holds true where the certificate testifies a judgment that was never released. Also where the certificate incorrectly certifies that the child or a party was heard though in fact they were not, a rectification must be possible (which finally would hinder the ‘fast track’ enforcement because a certificate stating that the necessary hearing did not take place would be insufficient for the automatic enforcement under Arts. 41 and 42). The contents of the certificate is wrong if it does not conform to the judgment.9 But the 4 rectification of the certificate cannot be used – neither directly nor indirectly – to rectify the contents of the judgment. Except where the certificate testifies a judgment that was never granted rectification cannot be used to quash the certificate as such.10 2. Rectification procedure The procedure of rectification is governed by the law of the Member State whose court 5 rendered the judgment and whose judge is competent to issue the certificate.11 The law of this country determines the formalities of the rectification procedure, in particular, during which period and in which form rectification can be requested and in which form the matter has to be decided,12 also whether and when the attacked certificate becomes invalid and can no longer be used. Rectification cannot be claimed in the Member State of enforcement or in still another state. It has been argued that also the entitlement to request rectification is to be determined 6 according to national law.13 However, the Regulation itself defines in Arts. 41 (2) and Art. 42 (2) the persons who have to be heard. These persons are the child and all parties concerned. They must also be entitled to apply for rectification of the respective certificate since their position can be affected by an incorrect certificate. For instance, if a hearing that has not taken place is incorrectly certified all parties and the child affected by this fact must have the right to claim rectification. Therefore, the Regulation itself determines the persons entitled to rectification.

7 8

9

10

11 12

13

Art. 43 Brussels IIbis note 5; probably also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 11. Confirmed by CJEU (Case C-211/10 PPU) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 71. Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 5 gives the example that the certificate states the period of access of 10 days erroneously with 100 days. Recital (24); Benicke, in: NomosKommBGB I Art. 43 note 2; Gottwald, in: MünchKommZPO Art. 43 Brussels IIbis Regulation note 1; Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 5. Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 6; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 11. See Art. 41 notes 18 et seq. and Art. 42 notes 15 et seq. (Magnus). Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 10. Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 10.

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7 Moreover, Art. 43 (1) requires the national law to offer at least some procedure of rectifica-

tion.14 If no such procedure exists it must be introduced. 8 Although the rectification procedure is governed by national law the judge concerned with

the rectification has to take account of the aim of the certificate to enable a fast track procedure. Therefore, any rectification proceedings should be conducted with particular rapidity. 3. Effect of rectification 9 After rectification only the rectified certificate has the effects granted by Art. 44. National

law decides whether and from when on the incorrect certificate becomes invalid, has to be returned or deleted. IV. No appeal (par. 2) 1. No appeal admissible against the issue of the certificate 10 Art. 43 (2) contains the general rule that – except for rectification – no appeal whatsoever lies

against the issue of the Annex III- or Annex IV-certificate.15 An appeal would contradict the aim of facilitating the enforcement of an access or return judgment covered by Arts. 41 and 42. Therefore, the certificate cannot be attacked both in the judgment state and in the enforcement state.16 It is only the judgment itself against which an appeal can be brought. But that can be raised only in the Member State of origin and in accordance with the law of that State.17 2. Appeal admissible against refusal to issue certificate 11 Art. 43 (2) does not exclude judicial remedies if the issue of the Annex-III or Annex IV-

certificate is refused.18 An appeal or respective remedy would however lie only in the Member State whose judge would be competent to issue the certificate, and the law of that state determines the available remedies.19 V. Reform 12 The Recast Proposal of 2016 suggests to re-enact Art. 43 Brussels IIbis Regulation as new 14 15

16 17

18

19

404

Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 10. See CJEU (Case C-211/10 PPU) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 70; Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 85. Hüßtege, in: Thomas/Putzo Art. 43 note 1/2. See also Benicke, in: NomosKommBGB I Art. 43 note 6; Coester-Waltjen FamRZ 2005, 241, (248); Gottwald, in: MünchKommZPO Art. 43 Brussels IIbis Regulation note 3; Hüßtege, in: Thomas/Putzo Art. 43 note 1/2; Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 3. Benicke, in: NomosKommBGB I Art. 43 note 12; Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 9; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 4. Paraschas, in: Geimer/Schütze Art. 43 Brussels IIbis note 9; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 43 note 4.

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Art. 54 (3) and (4). Art. 54 (1) Recast Proposal provides for an obligation of the authority of origin to rectify – upon application – “where, due to a material error, there is a discrepancy between the decision and the certificate.” The authority of origin shall further, again upon application, “withdraw the certificate where it was clearly wrongly granted, having regard to the requirements laid down in this Regulation.” (Art. 54 (2) Recast Proposal). Article 44: Effects of the certificate The certificate shall take effect only within the limits of the enforceability of the judgment.

I. Contents and aim The Article emphasises the merely serving function of the Annex III- and Annex IV-certi- 1 ficate and clarifies that the certificate takes effect only in connection with, and within the scope of, the judgment that shall be enforced. II. Legislative history The provision had no predecessor in the Brussels II or the Brussels I Regulation.1 Its model is 2 Art. 11 Regulation No. 805/2004/EC. III. Effects of the certificate The certificate under Annex III and IV shall achieve no less and no more than to facilitate 3 the enforcement of the respective judgment. This has a twofold meaning: First, the certificate does not take effect without the judgment that shall be enforced. Except in connection with the judgment the certificate has no further separate legal effect of its own. Secondly, the certificate does neither modify nor enlarge in any way the enforceability of the judgment as accorded by the judgment state.2 The certificate does not allow the state of enforcement to extend an otherwise restricted enforceability of the judgment in question. Art. 44 makes it also clear that in case of contradictions between the judgment and the certificate the judgment prevails. IV. Reform According to the Recast Proposal the present Art. 44 shall become unaltered Art. 53 (7) 4 Recast.

1 2

As to the history of all provisions of this Section see before Art. 40 note 4 (Magnus). See in the same sense Gottwald, in: MünchKommZPO Art. 44 Brussels IIbis Regulation note 1; Paraschas, in: Geimer/Schütze Art. 44 Brussels IIbis; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 44 note 1.

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Article 45: Documents 1. A party seeking enforcement of a judgment shall produce: (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and (b) the certificate referred to in Article 41(1) or Article 42(1). 2. For the purposes of this Article, – the certificate referred to in Article 41(1) shall be accompanied by a translation of point 12 relating to the arrangements for exercising right of access, – the certificate referred to in Article 42(1) shall be accompanied by a translation of its point 14 relating to the arrangements for implementing the measures taken to ensure the child’s return. The translation shall be into the official language or one of the official languages of the Member State of enforcement or any other language that the Member State of enforcement expressly accepts. The translation shall be certified by a person qualified to do so in one of the Member States. I. II. III. IV.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Scope of the Article . . . . . . . . . . . . . . . . . . . . . . . . . 3 Necessary documents (par. 1) 1. General considerations . . . . . . . . . . . . . . . . . . 5 2. Judgment (par. 1 (a)) . . . . . . . . . . . . . . . . . . . . 6 3. Certificate (par. 1 (b)) . . . . . . . . . . . . . . . . . . . 9 4. Burden to produce the documents . . . . . 13

V.

VI.

5. Effects of documents . . . . . . . . . . . . . . . . . . . . 14 Translation (par. 2) 1. General aspects . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. Annex III-certificate (indent 1) . . . . . . . . 18 3. Annex IV-certificate (indent 2) . . . . . . . . 19 4. Language of translation . . . . . . . . . . . . . . . . . 20 5. Certification of translation . . . . . . . . . . . . . . 21 Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. Contents and aim 1 The Article is the parallel provision to Art. 37. While Art. 37 is the general provision on

documents necessary for the enforcement of judgments covered by the Regulation Art. 45 states these formal requirements specifically for Section 4 of Chapter III. Art. 45 (1) lists the documents which must be presented for the enforcement of a judgment on access to, and the return of, a child in another Member State. In essence, the same documents – judgment and certificate – are necessary as in Art. 37 but Art. 45 requires not only the specific certificates referred to in Art. 41 (1) and 42 (1) but also in addition a mandatory translation of certain points of these certificates. Like Art. 37 does Art. 45 regulate formalities of the procedure in the enforcement state and overrides insofar the general reference to the law of the enforcement state in Art. 47 (1).1 II. Legislative history 2 The provision had no predecessor in the Brussels II or the Brussels I Regulation.2 1

2

406

Paraschas, in: Bülow/Böckstiegel/Geimer/Schütze Art. 45 Brussels IIbis note 1; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 1. As to the history of all provisions of this Section see before Art. 40 note 4 (Magnus).

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III. Scope of the Article The provision applies only to judgments on access rights and return orders as far as covered 3 by Art. 40. Art. 45 defines autonomously which documents a party must produce when the ‘fast track’ procedure of recognition and enforcement of such judgments is sought. The necessary documents are no longer prescribed by the applicable national law. Yet, national law remains still relevant insofar as it prescribes the conditions according to which the required documents are authentic.3 It is disputed whether Art. 45 is exhaustive insofar as no further documents must be pro- 4 duced4 or whether the judge or authority of the enforcement state has discretion to require the production of further documents.5 The better view is to regard Art. 45 as exhaustive. The judge or authority of the enforcement state cannot request other documents than the judgment and the certificate. Otherwise the aim of the ‘fast track’ procedure could be easily undermined by national requirements concerning further documents. It is, however, a separate question whether further translations can be requested. If there is serious doubt about the contents of the judgment or of the certificate the court or authority of the enforcement state should be entitled to request additional translations.6 IV. Necessary documents (par. 1) 1. General considerations Art. 45 (1) requires that two documents must be presented: the judgment and a certificate 5 which certifies the enforceability of the judgment. These documents cannot be replaced with equivalent other documents nor be entirely dispensed with.7 Section 4 of Chapter III does not contain a provision similar to Art. 38 (1) which allows a substitution or dispense. Moreover, the specific and strictly formalised character of the fast track procedure for access rights and return orders is irreconcilable with a substitution of, or dispense with, of any of the necessary documents. 2. Judgment (par. 1 (a)) The primary document – the judgment which shall be enforced – can be produced as 6 original. But like in Art. 37 (1) (a) a copy of the judgment suffices. However, a copy is needed “which satisfies the conditions necessary to establish its authenticity”. This formulation has the same meaning as in Art. 37 (1) (a) and expresses that the copy must meet the requirements of authentication prescribed by the Member State where the judgment has

3 4

5 6

7

See infra notes 6 et seq. See Gottwald, in: MünchKommZPO Art. 45 Brussels IIbis Regulation note 2; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 2; Rieck Art. 45 note 1. In this sense Paraschas, in: Geimer/Schütze Art. 45 Brussels IIbis note 5. Also Paraschas, in: Geimer/Schütze Art. 45 Brussels IIbis note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 notes 7, 8. See also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 2.

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been rendered.8 Besides that, no legalisation or other formality is required in order to prove the authenticity of the documents (see Art. 52). 7 As under Art. 37 (1) (a) the law of the judgment state defines under which conditions a copy

of a judgment is authentic. The authenticity requirements are not identical in the Member States. But regularly, a rather strict form for authentication is necessary, for instance stamp and signature put on the copy by the clerk of the court which rendered the judgment.9 A mere copy without any further kind of authentication does not suffice.10 It is unfortunate that the Regulation does not autonomously state the requirements of authentication since the present rule requires the court seized first to collect reliable information on the means of authentication in the judgment state. 8 The judgment must only be produced in its original language; an accompanying translation

into the language of the enforcement state is not necessary (though admissible). But although Section 4 does not contain an equivalent to Art. 38 (2) under which the court of the enforcement state may request a translation it has to be implied that Art. 45 allows a same discretion to request a translation.11 The reason for this implication is that otherwise the court or authority of the enforcement state would be forced to enforce a judgment on whose precise contents it may have serious doubts. 3. Certificate (par. 1 (b)) 9 Besides the judgment the certificate referred to in Art. 41 (1) or Art. 42 (1) must be produced.

This is the certificate in the standard form of Annex III in case of a judgment on rights of access and of Annex IV in case of a judgment on the return of the child. The certificate must be one which the judge of origin has issued.12 Furthermore, the original of this certificate must be produced.13 10 In contrast to Art. 37–39 (which require no translation at all unless the court so requests) it

may become necessary that the applicant furnishes a partial translation of the certificate. In case of an Annex III-certificate its point 12 and in case of an Annex IV-certificate point 14 must be translated, however only if specific measures concerning access to, or return of, the child have been ordered. This is to secure that essential orders, namely the arrangements either for exercising a right of access or “for implementing the measures to ensure the child’s

8

9 10 11

12 13

408

Report Borrás note 103 (although with respect to what now is Art. 37 since Arts. 40–45 where not yet contained); Benicke, in: NomosKommBGB I Art. 45 note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 7; in the same sense with respect to the former Art. 53 Brussels I Regulation: Kropholler/von Hein Art. 53 note 2. See for instance for Germany: § 317 para. (4) ZPO. See already Art. 37 note 13 (Magnus). Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 10; supporting the view that the law of the enforcement state determines whether a translation can be requested: Paraschas, in: Geimer/Schütze Art. 45 Brussels IIbis note 5. See Art. 41 (2) and Art. 42 (2). Gottwald, in: MünchKommZPO Art. 45 Brussels IIbis Regulation note 1; Paraschas, in: Geimer/Schütze Art. 45 Brussels IIbis note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 8.

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return”14 can be fully understood by the authority of the enforcement state. Where no such measures were ordered point 12 and 14 have to be left blank. It has been rightly requested that the judge of origin who issues the certificate should be as 11 careful and explicit as possible, in particular when filling point 12 or point 14 of the respective certificate.15 This would reduce the risk that the court or authority of the enforcement state would request the additional translation of the judgment or of further parts of the certificate.16 As to the formalities of the translation see infra note 16 et seq.

12

4. Burden to produce the documents It is self-evident that the applicant who seeks the recognition or enforcement of a judgment 13 either on a right of access or on the return of the child is obliged to produce the necessary documents. 5. Effects of documents If the necessary documents have been furnished the judgment on access or return must be 14 recognised and enforced. The competent court or authority of the enforcement state need only, and is only allowed to, check the formal requirements – original or authenticated copy of the judgment, original of the certificate and its accompanying (partial) translation where the certificate details the respective point 12 or 14. Furthermore, the court or authority of the enforcement state must also examine whether the certificate is completely filled in. But neither a révision au fond nor an ordre public control of the judgment is admitted.17 Can either the judgment or the certificate or the necessary partial translation not be pro- 15 duced then the application for ‘fast track’ recognition and enforcement must be dismissed, generally after a time for the production of the missing document(s) has been set and has lapsed.18 If the certificate is incomplete the applicant should also be given the opportunity to remedy the defect by producing a new and complete certificate issued by the judge of origin. In any event, the enforcement of the judgment shall not start before all necessary documents have been produced in satisfactory form.19 Mere writing errors which do not cast doubt on the contents of the certificate should, however, not hinder the recognition and enforcement of the judgment.20

14

15 16 17

18 19 20

This formulation which should mirror Art. 42 (2) cl. 2 is misleading; see infra note 19. See also the critique by Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 14. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 notes 11 et seq. Rauscher, in: Rauscher Art. 45 notes 11 et seq. Dörner, in: Hk-ZPO Art. 45 EheGVVO note 4; Gottwald, in: MünchKommZPO Art. 45 Brussels IIbis Regulation note 5; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 3; see also the comment on Art. 47 (McEleavy). Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 4. Paraschas, in: Geimer/Schütze Art. 45 Brussels IIbis note 2. In the same sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 45 note 5.

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V. Translation (par. 2) 1. General aspects 16 In principle, the necessary documents need not be translated. Only a partial translation of

the Annex III or IV-certificate is required where the certificate contains information on specific orders concerning the exercise of the right of access or the protection of the child after its return (see infra note 19). As far as a translation becomes necessary the applicant has to provide it21 into an official language of the enforcement state, and the correctness of the translation must be certified by a qualified person. 17 The rules on the language and the certification of the translation apply also where the court

or authority of the enforcement state is exceptionally entitled to request the translation of further parts of the Annex III or Annex IV-certificate or of the judgment.22 2. Annex III-certificate (indent 1) 18 Where a judgment on right of access orders when and in which way the access is to be

exercised the applicant must provide a translation of all of these arrangements which the Annex III-certificate has to record under its point 12. As far as stated in the judgment the date and time of access, its place and specific obligations of the holder(s) of parental responsibility and of the person entitled to access as well as restrictions attached to the right of access must be recorded and also be translated. 3. Annex IV-certificate (indent 2) 19 With regard to judgments on the return of a child the translation of point 14 of the Annex

IV-certificate is required. Under this point “details of measures taken by courts or authorities to ensure the protection of the child after its return to the Member State of habitual residence”23 have to be recorded where such measures have been taken. These measures may have been ordered in the judgment which shall be enforced or in another judgment or may have been taken by other authorities than the court which rendered the return judgment. 4. Language of translation

20 Art. 45 (2) cl. 2 prescribes that the translation must be into the official or officially accepted

language of the enforcement state – if there are more than one then into one of those.24 If the translation satisfies this condition the court or authority of the enforcement state cannot request the translation into another – even also official – language.

21 22 23

24

410

See already Art. 41 note 31 and Art. 42 note 24 (Magnus). As to this exception see supra note 4. This formulation is identical with Art. 42 (2) cl. 2. With this text the formulation in Art. 45 (2) indent 2 (“arrangements for implementing the measures taken to ensure the child’s return”) does not correspond but must be interpreted as to mean the same as in Art. 42 (2) cl. 2 and Annex IV pont 14. As to the official and officially accepted languages of the Member States see the Annex to Art. 67.

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5. Certification of translation The translation alone, where required, does not suffice; it must be certified by a qualified 21 person (Art. 45 (2) cl. 3). The certification shall ensure the correctness of the translation and must therefore be executed “by a person qualified to do so in one of the Member States”. The formulation is identical with Art. 38 (2) cl. 2 and has mainly the same meaning. The qualified person need not necessarily personally deliver the translation. It is sufficient that s/he guarantees the correctness of the translation by his or her certificate. Furthermore, the certifying person must have gained his or her qualification in a Member State. It need, however, neither be the judgment state nor the state where the recognition or enforcement is sought.25 The qualification must entitle the person to translate into or from the respective language for the purposes of court proceedings.26 In contrast to Art. 38 the court or authority of the enforcement state is not entitled to accept a translation whose correctness is not certified or which was made by a person without the required formal qualification since under art. 45 there is – contrary to Art. 38 (2) – no discretion to request, or dispense with, a translation.27 VI. Reform The Recast Proposal retains the essence of the present Art. 45 Brussels IIbis Regulation as 22 new Arts. 34 and 69. However, the suggested Art. 34 provides that the certificate must certify that the decision is enforceable; the certificate must further contain “the relevant extract of the decision which specifies the obligation to be enforced.”28 The court can, where necessary, request a translation or transliteration of the relevant content of the certificate,29 and even a translation of the decision, however, “only if it is unable to proceed without such a translation.”30

Section 5: Authentic instruments and agreements Article 46 Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable 25 26 27

28 29 30

See Report Borrás note para. 108; also Art. 38 note 26 (Magnus). Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 16. See for this interpretation of Art. 38 (2) cl. 2: Andrae, in: Nomos Kommentar BGB I Art. 38 note 3; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 38 note 10; with respect to the Brussels Convention: BGH 26 September 1979, BGHZ 75, 167 and to the identical provision of the Brussels I Regulation: Kropholler/von Hein Art. 55 Brussels I Regulation note 3; on the corresponding provision of the Brussels Ibis Regulation (Art. 57 (3): Kramer, in: Magnus/Mankowski Art. 57 Brussels Ibis Regulation note 9 et seq. Art. 34 (1) (b) Recast Proposal. Art. 34 (2) in connection with Art. 69 Recast Proposal. Art. 34 (3) Recast Proposal.

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in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments. I. II. III.

IV.

Contents and aim . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Scope of the Article 1. Material scope . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Temporal scope . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Territorial scope . . . . . . . . . . . . . . . . . . . . . . . . . 8 Documents covered by Art. 46 1. Authentic instruments . . . . . . . . . . . . . . . . . . 9 2. Enforceable agreements . . . . . . . . . . . . . . . . . 10

V.

Requirements of enforceability 1. Enforceable contents . . . . . . . . . . . . . . . . . . . . 11 2. Enforceability in Member State of origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3. Burden to produce documents . . . . . . . . . 17 4. Formal requirements . . . . . . . . . . . . . . . . . . . . 18 5. Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 VI. Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 VII. Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

I. Contents and aim 1 Art. 46 forms a separate Section of the Brussels IIbis Regulation. It deals with the recognition

and enforcement of authentic instruments and agreements and intends to grant them the same position as judgments if they are enforceable in the state of their origin.1 Since these documents are normally not enforceable without further proceedings it must be sufficiently established that they have this exceptional effect. In the field covered by the Regulation – divorce and parental responsibility – it is however rather the exception than the rule that the law of the Member States provides for such enforceable instruments and agreements and treats them as equivalent to judgments. Nonetheless, in particular Finnish, Scottish and Swedish law knows of that possibility.2 II. Legislative history 2 The section had a predecessor in Art. 13 (3) Brussels II Regulation of largely identical

wording. However, Art. 13 (3) Brussels II Regulation did not cover every kind of agreement but only court settlements which had to be “approved by a court in the course of proceedings”. The present section has deleted this restriction. The reason for this change is nowhere explained.3 Its background may have been the possibility provided for by Finnish and Swedish law to conclude an agreement on custody which is approved not by a court but by an administrative authority.4 3 Already both the Brussels I Regulation and the Brussels Convention contained a separate

Section on authentic instruments and court settlements5 as now does the Brussels Ibis 1 2 3 4

5

412

See Recital (22) to the Regulation. See Report Borrás note 61. See also Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 2. See Report Borrás note 61. The Report (to the Brussels II Regulation Convention) and the Brussels II Regulation did, however, not yet draw the conclusion that not only court settlements but also out-ofcourt agreements should be included.; see thereto also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 2. Arts. 57, 58 Brussels I Regulation, Arts. 50, 51 Brussels Convention. Also the Lugano Convention (Arts. 50, 51) contains a corresponding section.

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Regulation.6 The definition of the terms authentic instrument7 and court settlement8 developed within this framework and the decisions of the CJEU9 thereon provide guidelines which should be followed also under the Brussels IIbis Regulation. III. Scope of the Article 1. Material scope Art. 46 extends only to such authentic instruments and agreements which concern matters 4 covered by the Regulation.10 But the provision extends at the same time to authentic acts concerning all covered matters.11 Generally, under the laws of the Member States authentic instruments and agreements on divorce and parental responsibility which have the character of an enforceable judgment are rare rather than frequent because purely administrative or private disposition over status and custody is met with suspicion and reluctance because there is always a certain common interest involved in these matters. But, for instance, an administrative or judicial document of acknowledgment of a private divorce falls within the scope of Art. 46 unless the document must be qualified itself as a judgment of divorce.12 The same may hold true for an authentic certificate issued in London13 certifying a divorce in Gibraltar. On the contrary, a merely private divorce – e.g., divorce of a Muslim marriage merely by the husband’s talaq or of a Thai couple by mere agreement – even if declared in a Member State does not fall under Art. 46 and cannot be recognised in other Member States because and if there is neither an authentic instrument nor an enforceable agreement.14 In the field of parental responsibility there encounter, for instance under Finnish and Swe- 5 dish law, custody agreements approved by the administrative authority; they fall under Art. 46.15 The provision covers also enforceable agreements, in particular court settlements, concerning the right of access; the same applies with respect to authentic instruments or 6 7

8 9

10

11

12

13

14 15

Arts. 58, 59 Brussels Ibis Regulation. Art. 4 no. 3 Regulation Creating a European Enforcement Order for Uncontested Claims of 2004 and Art. 2 (c) Brussels Ibis Regulation now contain a full definition of this term which codifies the CJEU case law on authentic instruments. See the definition in Art. 2 (b) Brussels Ibis Regulation. See in particular – though on Art. 50 Brussels Convention – CJEU (1999) ECR I-3724 (Case C-260/97, Unibank A/S v. Flemming G. Christensen). Andrae, in: Nomos Kommentar BGB I Art. 46 note 1; Dörner, in: Hk-ZPO Art. 46 EheGVVO note 1; Dornblüth p. 63 (with respect to the parallel provision of the Brussels II Regulation); Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 4. Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 46 note 1; partly contra: Andrae, in: Nomos Kommentar BGB I Art. 46 note 1 (in matrimonial matters only instruments and agreements on costs fall under Art. 46); also Siehr, in: MünchKomm BGB Art. 21 EGBGB Anh. I note 263 (Art. 46 refers to measures of parental responsibility); see further infra note 11. Dornblüth p. 63 (with respect to the parallel provision of the Brussels II Regulation); contra Geimer IPRax 2000, 366, 368. By the United Kingdom Government/Gibraltar Liaison Unit for EU Affairs of the Foreign and Commonwealth Affairs, see thereto Calvo Caravaca/Carrascosa González, vol. II, note 52. In the same sense Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 7. Report Borrás note 61.

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agreements of enforceable character on the return of the child though they appear to be less frequent. 6 It can be questioned whether Art. 46 includes or excludes proceedings in accordance with

Art. 40–45. The wording of Art. 46 (“shall be … declared enforceable”) can be understood in the sense that the documents referred to in Art. 46 can replace judgments only in the ordinary proceedings under Arts. 28 et seq. because the proceedings under Arts. 40 et seq. do not require a declaration of enforceability.16 However, the systematic position of Art. 46 as a separate section behind Arts. 21–45 militates rather for its application also to proceedings under Arts. 40–45. Moreover, the aim of direct enforceability of enforceable access and return decisions does not stand in the way to apply Art. 46 to Arts. 40–45. On the contrary, if there exists an enforceable agreement on the right of access the interests and welfare of the child will regularly require its direct and rapid enforcement in the same way as if a comparable judgment existed. Thus, Art. 46 does not only refer to Arts. 21–39 but also to Arts. 40– 45.17 2. Temporal scope

7 In temporal respect Art. 46 applies to authentic instruments drawn up or registered, and to

agreements concluded, on or after 1 March 2005 (Art. 64 (1) and Art. 72 cl. 2).18 3. Territorial scope 8 The territorial scope of Art. 46 corresponds to that of the Regulation. Thus, Art. 46 covers

only authentic instruments and enforceable agreements which have been drawn up, registered or concluded in a Member State of the Brussels IIbis Regulation.19 IV. Documents covered by Art. 46 1. Authentic instruments 9 Meanwhile the term authentic instrument has acquired an autonomous European meaning.

Though the term is not fully defined in Art. 46, the definition in Art. 2 (c) of the Brussels Ibis Regulation as the core instrument of European international procedure should be used. Moreover, it is the most recent definition of the term. The provision runs as follows: “‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in the Member State of origin and the authenticity of which: (i) relates to the signature and the content of the instrument; and (ii) has been established by a public authority or other authority empowered for that purpose.”20 This definition has been built 16

17

18 19

20

414

In this sense though without discussing the point apparently Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 9. Evidently in the same sense but without discussion: Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 17, 21. See also Dörner, in: Hk-ZPO Art. 46 EheGVVO note 1. Also Dörner, in: Hk-ZPO Art. 46 EheGVVO note 1; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 4 et seq. See thereto Merrett, in: Magnus/Mankowski Art. 2 Brussels Ibis Regulation note 39 et seq.

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on the CJEU decision in Unibank A/S v. Fleming G. Christensen.21 According to this definition an authentic instrument must be:22 – first a document; that means something in writing (even reproducible electronic writing) whose author can be identified; – formally drawn up or registered as an authentic instrument; the document must be drawn up in a formal way or must be registered. To ensure the authenticity of the document the CJEU requires that a public authority or other authority empowered for that purpose by the state of origin must have been involved in order to establish the authenticity of the respective document.23 National law thus provides which persons are authorised to authenticate documents.24 For instance, an enforceable acknowledgment of indebtedness which has been drawn up without the involvement of a public or publicly empowered authority does therefore not constitute an authentic instrument.25 Instruments drawn up between private parties alone do also not satisfy this condition; too, documents set up by ordinary lawyers do not meet the requirement while documents set up by publicly appointed notaries do.26 The authentication must refer not only to the signature but – like in the case of a judgment – to the entire contents of the document, irrespective whether or not national law requires such authentication;27 – drawn up or registered in a Member State (or in a consulate of a Member State in a third state).28 In any event, the nationality and habitual residence of the persons seeking the authentication are irrelevant;29 – enforceable in one Member State. It is necessary that the document is enforceable as such; it must serve as a procedural title which can be immediately enforced (as to the details of enforceability see infra note 11 et seq.). It is argued that Art. 46 does not cover documents certifying the civil status of a person because those documents have no enforceable contents.30 2. Enforceable agreements Art. 46 applies also to any private agreement on matters covered by the Regulation if this 10 agreement is enforceable under the law of the Member State of origin. Enforceability means 21

22 23 24 25 26 27

28

29

30

CJEU (1999) ECR I-3724 (Case C-260/97, Unibank A/S v. Flemming G. Christensen) (on Art. 50 Brussels Convention). See also Wagner DNotZ 2011, 176 (180). See already CJEU (1999) ECR I-3724 (Case C-260/97, Unibank A/S v. Flemming G. Christensen) para. 15. Andrae, in: Nomos Kommentar BGB I Art. 46 note 5. CJEU (1999) ECR I-3724 (Case C-260/97, Unibank A/S v. Flemming G. Christensen) para. 21. Merrett, in: Magnus/Mankowski Art. 2 Brussels Ibis Regulation note 40. CJEU (1999) ECR I-3724 (Case C-260/97, Unibank A/S v. Flemming G. Christensen) para. 15; OLG Saarbrücken IPRax 2001, 238 (both on the Brussels Convention); Andrae, in: Nomos Kommentar BGB I Art. 46 note 4; Kropholler/von Hein Art. 57 Brussels I Regulation note 3; Merrett, in: Magnus/Mankowski Art. 2 Brussels Ibis Regulation note 40. Andrae, in: Nomos Kommentar BGB I Art. 46 note 9; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 4; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 13. Andrae, in: Nomos Kommentar BGB I Art. 46 note 9; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 6. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 4; Wagner DNotZ 2011, 176 (181).

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again that the agreement serves as a title and can be immediately enforced31 (see further infra note 12 et seq.). Agreements comprise court settlements32 – which will regularly fulfil the requirements of an authentic instrument as well – but also out-of-court-settlements if they are granted direct enforceability.33 V. Requirements of enforceability 1. Enforceable contents 11 It is disputed whether Art. 46 requires that the authentic instrument or the enforceable

agreement must have an enforceable contents. The prevailing view favours a positive answer and requires an enforceable contents.34 The argument is simple: authentic instruments and agreements without enforceable contents cannot be enforced.35 The argument does however not take account of those authentic instruments and agreements which need not be enforced but only recognised like for instance an authenticated declaration of the distribution of custody after a child’s birth to an unmarried couple or after divorce. For those instruments and agreements it must suffice that their contents is capable of being recognised.36 2. Enforceability in Member State of origin 12 Art. 46 requires further that the authentic instrument or agreement be enforceable in a

Member State. With respect to authentic documents it is common ground that despite the expression “in one Member State” in Art. 46 the document must be enforceable in the Member State of origin. That is the state whose public or publicly empowered authority certified the authenticity of the document in question.37 The law of this state determines whether the document is enforceable. If the document has been authenticated by the diplomatic representation or consulate of a Member State the enforceability is governed by this Member State’s law.38 The law of the Member State where recognition and enforcement is

31

32

33

34

35 36

37

38

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Andrae, in: Nomos Kommentar BGB I Art. 46 note 11; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 9; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 6. For a definition of ‘court settlement’ that should be used also under the Brussels IIbis Regulation see Art. 2 (b) Brussels Ibis Regulation. Andrae, in: Nomos Kommentar BGB I Art. 46 note 8; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 46 note 3; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 6; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 2. Andrae, in: Nomos Kommentar BGB I Art. 46 note 2; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 46 note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 7. Andrae, in: Nomos Kommentar BGB I Art. 46 note 2. In this sense also Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 7; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 10; Rieck Art. 46 note 5; Dornblüth 63 (still to the preceding Regulation). Andrae, in: Nomos Kommentar BGB I Art. 46 note 4; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 7; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 6; see also the definition in Art. 4 no. 3 Regulation Creating a European Enforcement Order for Uncontested Claims of 2004. Andrae, in: Nomos Kommentar BGB I Art. 46 note 9; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 13; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 4.

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sought does not matter. Nor does the nationality or the habitual residence of the involved persons affect the enforceability of authentic documents.39 With respect to agreements it is less settled whose state’s law shall determine their enforce- 13 ability. The wording of Art. 46 is not particularly helpful because the different language versions differ. While the English text is rather clear in saying “in the Member State in which they ‘sc. the agreements’ were concluded”, the French and the German version mention only the state of origin (“dans l’État membre d’origine”, “in dem Ursprungsmitgliedstaat”) leaving it open how this state should be determined. For court settlements it is rather obvious that the law of the country governs the enforceability where the seized court is located in which the settlement was concluded.40 This was also the solution Art. 58 Brussels I Regulation provided for and it can be inferred now from Art. 59 Brussels Ibis Regulation (“A court settlement which is enforceable in the Member State of origin shall be enforced in the other Member States […]”).41 In regard of other agreements than court settlements it is disputed how the state should be 14 determined whose law governs their enforceability. Several solutions are offered: Partly, it is proposed that the law of the state shall decide according to whose law the agreement has been formally concluded and shall take effect.42 But it will be frequently the question according to which law the agreement was concluded. Partly, it is proposed that the conflict rules of the state shall decide where the agreement shall take effect.43 This is hardly reconcilable with a concept relying on the state of origin. Moreover, the conflict rules on agreements in family matters are neither unified among the Member States nor always satisfactorily settled in the Member States. Rather uniform is the rejection of the law of the place where the agreement was concluded (if such a place can at all be distinguished) because this place can be too accidental.44 It could be argued that the solution under Arts. 58 and 59 Brussels Ibis Regulation should be 15 followed as far as possible also with regard to the application of the Brussels IIbis Regulation; then the law of the state of origin would decide on the enforceability of an agreement. However, with the exception of the place where the parties conclude their contract there is no state of origin for agreements. The place of agreement is in fact often accidental and sometimes difficult or even impossible to determine. It appears preferable to determine the state of origin as the state with which the agreement is most closely connected. This is the

39

40 41

42

43 44

Andrae, in: Nomos Kommentar BGB I Art. 46 note 9; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 4; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 4, 6. Also Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 5. According to 2 (d) Brussels Ibis Regulation the Member State of origin is the state where the court settlement “has been approved by a court of a Member State or concluded before a court of a Member State […]”. Andrae, in: Nomos Kommentar BGB I Art. 46 note 10; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 16. Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 5. Andrae, in: Nomos Kommentar BGB I Art. 46 note 10; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 6; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 15; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 5.

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general conflict rule for contracts.45 The more specific international contract rules which allow a free choice of law46 or – in default of such choice – connect the contract with the law at the seat of the characteristically performing party47 do not fit for agreements on family matters as, for instance, the right of access.48 The general rule though admittedly somewhat vague allows to take all connecting factors of the case into account and provides sufficient flexibility to determine the law which governs the enforceability – and also the material validity – of the agreement in question. 16 In practice the problem will be probably mainly solved by the formality that a certificate of

enforceability must accompany the agreement that shall be enforced (see infra note 19). The state whose authorities issued this certificate can be generally regarded as the state of origin. Their competence is in turn also based on sufficient connecting factors to found their jurisdiction. 3. Burden to produce documents

17 The person who wants to rely on an enforceable authentic instrument or agreement has to

produce it and the necessary certificate (see thereto the following note). 4. Formal requirements 18 Since Art. 46 declares authentic instruments and agreements as “enforceable under the same

conditions as judgments” it is the common understanding that also the formal requirements provided for by Arts. 37–39 and Art. 45 have to be satisfied.49 That means that either the original or an authenticated copy50 of the authentic instrument or of the enforceable agreement needs to be produced (Art. 37 (1) (a) and Art. 45 (1) (a)). 19 It might be questioned whether also the certificate mentioned in Art. 37 (1) (b) and Art. 45

(1) (b) must be produced. The necessity of an accompanying certificate may be doubted because the Annexes do not provide for a certificate for authentic instruments or enforceable agreements. The present Annexes do not fit for these documents. Even Annex III on judgments on rights of access does not contain a point where agreements on the access right are to be recorded (though the Draft of Brussels IIbis Regulation still did).51 Nonetheless, it is

45 46 47 48

49

50 51

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See Art. 4 (4) Rome I Regulation; Art. 4 (1) cl. 1 Rome Convention. See Art. 3 Rome I Regulation; Art. 3 Rome Convention. See Art. 4 Rome I Regulation; Art. 4 Rome Convention. For this reason such contracts are excluded from the scope of the Rome I Regulation (Art. 1 (2) (a)–(c) Rome I). Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis notes 18, 21; see also Andrae, in: Nomos Kommentar BGB I Art. 46 note 14, Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 46 note 5 and Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 10 though these authors mention only that Arts. 37–39 apply respectively. As to the requirements for the authenticity of a copy see Art. 37 notes 12 et seq. (Magnus). See point 10 of Annex VI of the Draft (COM (2002) 222 fin./2).

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necessary to require the certificate52 since otherwise the authority of the enforcement state had to enquire whether the authentic instrument or the agreement were enforceable in the state of origin. As long as there is no specific Annex to the Regulation for these cases the present standard forms of the Annexes I – IV have to be adapted to authentic instruments and agreements,53 mainly by replacing the word “judgment” in the respective form with either “authentic instrument” or “agreement”. Although Art. 52 does not mention Art. 46 no legalisation or other similar formality is 20 required for authentic instruments and enforceable agreements. The reference in Art. 52 to the documents mentioned in Arts. 37, 38, 45 has to be read as to include the documents mentioned in Art. 46 because the latter are treated as judgments that are covered by the provisions to which Art. 52 refers. The reference of Art. 46 to the provisions concerning judgments includes in principle also 21 Art. 38 (1) and the possibility to dispense with the production of the prescribed documents. However, it will be probably a rare exception that either the authentic instrument or the agreement or the accompanying certificate or even all of them need not be produced because sufficient other evidence is presented. For, public documents and private agreements are normally not enforceable. Therefore, generally reliable official proof of their enforceability is needed. 5. Translation The authentic instrument, the enforceable agreement and the accompanying certificate can 22 be produced in their original language. The only exceptions are point 12 and 14 where either an equivalent certificate to Annex III or to Annex IV is used. If information under these points has to be given Art. 45 (2) requires a translation of these points into an official language of the enforcement state. However, from Art. 38 (2) the general principle should be inferred that the court or authority seized with the case in the enforcement state may request (further) translations of the produced documents or of part thereof if else an informed and responsible decision cannot be taken.54 As to the language of the translation and the qualification of the translator see Art. 38 23 notes 23 et seq. and Art. 45 notes 21 et seq. VI. Effects Authentic instruments and agreements which are enforceable in the Member State of origin 24 and which meet the necessary formal requirements are to be recognised and enforced in the same way as judgments. Their recognition follows Arts. 21 et seq. Their enforcement is governed either by Arts. 28 et seq. which require a declaration of enforcement or by Arts. 40 52

53

54

In the same sense Andrae, in: Nomos Kommentar BGB I Art. 46 note 14; Hüßtege, in: Thomas/Putzo Brussels IIbis Regulation Art. 46 note 5; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 19; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 10. Andrae, in: Nomos Kommentar BGB I Art. 46 note 14; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 20; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 10. For further discussion see Art. 38 note 23 (Magnus).

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et seq. which enable their direct enforcement. In the state of recognition or enforcement the instruments and agreements have the same effects as in the state of origin.55 25 In contrast to Art. 58 (1) sent. 2 Brussels Ibis Regulation the authorities of the enforcement

state cannot only refuse the recognition and enforcement of enforceable authentic instruments and agreements if the document is “manifestly contrary to the public policy”56 of the enforcement state. Recognition and enforcement can be also refused for the reasons on which the recognition and enforcement of judgments can be denied (Arts. 22 and 23).57 Only the provision on default judgments in Art. 22 (b) and Art. 23 (c) does not fit for authentic instruments and agreements.58 VII. Reform 26 The Recast Proposal of 2016 retains the present Art. 46 Brussels IIbis Regulation almost

unaltered as new Art. 55. The only changes are: the formulation “and declared enforceable” shall be replaced with “and enforced” and the word “judgments” at the end with “decisions”. The first amendment is due to the general waiver of the exequatur procedure; the second to the use of the broader term that includes judgments.

Section 6: Other provisions Article 47: Enforcement procedure 1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Art. 41(1) or Art. 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Art. 41(1) or Art. 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment. I. II. III.

55

56 57

58

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Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Application . . . . . . . . . . . . . . . . . . . . . . . 1. ECHR Case law . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Standard Track Enforcement . . . . . . . . . . .

1 2 4 5 8

3. a) b) 4.

Fast Track Enforcement . . . . . . . . . . . . . . . . 9 Access Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Return Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art. 47 (2) subpara. 2 . . . . . . . . . . . . . . . . . . . 17

Andrae, in: Nomos Kommentar BGB I Art. 46 note 12; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 17. See Art. 57 (1) cl. 2 Brussels I Regulation. Andrae, in: Nomos Kommentar BGB I Art. 46 note 12; Gottwald, in: MünchKommZPO Art. 46 Brussels IIbis Regulation note 9; Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 17; Rauscher, in: Rauscher Brussels IIbis Regulation Art. 46 note 8, 9; Sengstschmid, in: Fasching/Konecny Art. 46 note 16. See Paraschas, in: Geimer/Schütze Art. 46 Brussels IIbis note 17.

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I. Preliminary Remarks Brussels IIbis, in common with all the Brussels judgments instruments, refers in its title to 1 ‘recognition and enforcement’. However, the Regulation only facilitates enforcement insofar as it renders judgments issued in one Member State capable of execution in another; the modalities of enforcement procedure, as Art. 47 (1) makes clear, are to be governed by the law of the Member State of enforcement. Consequently Member State judgments will be subject to the same challenges and difficulties that pertain to the enforcement of domestic family law orders, a process which has proved problematic in many jurisdictions.1 Free movement and mutual recognition must therefore be seen in this context, since it is only with the participation and support of authorities in individual legal systems that rights granted in one Member State can easily and effectively be upheld in another. Arts. 47–52 in their present shape are on death row since they are earmarked to be deleted 1a and abolished in the Recast process.2 The Commission Proposal is to this avail and leaves no doubt about the avenue to be followed. First, the efficiency and effectivity of enforcement shall be enhanced.3 Unnecessary delays and costs related to the exequatur requirement shall be eliminated.4 Second, the Commission Proposal wants to avoid parents’ frustration or contradictory situations which could possibly be caused by any requirement of exequatur.5 Seen in the wider context, the Commission Proposal strives to align the future Brussels IIbis 1b Recast Regulation with the Brussels Ibis Regulation. Exequatur is not the European standard model anymore as it still was in 2003 and has been until 2015 when the Brussels Ibis Regulation became effective. Art. 30 (1) Proposal acknowledges this. Yet the Brussels Ibis Regulation retains some rules clarifying the interaction between that Regulation and the domestic rules on enforcement (enforcement to be distinguished from, and opposed to, a 1

2 3

4

5

See for example: (Austria) Sylvester v. Austria (Application nos. 36812/97 and 40104/98) (2003) 37 EHRR 417; (Finland) Hokkanen v. Finland (Application no. 19823/92) (1995) 19 EHRR 139; (Poland) H.N. v. Poland (Application no. 77710/01) (2005) ECHR 587; Zawadka v. Poland (Application no. 48542/99) (2005) ECHR 421; P.P. v Poland (Application no. 8677/03), 8 January 2008; (Portugal) Maire v. Portugal (Application no. 48206/99) (2003) ECHR 324; (Spain) Iglesias GIL & A.U.I v. Spain, (Application no. 56673/00) (2003) ECHR 206; (United Kingdom – England & Wales) Advisory Board on Family Law: Children Act Sub-Committee Making Contact Work: A Report to the Lord Chancellor on the Facilitation of Arrangements For Contact Between Children and their Non-Residential Parents and the Enforcement of Court Orders For Contact, February 2002, www.dca.gov.uk/family/abfla/mcwrep.htm. TMC Asser Instituut, Comparative Study on Enforcement Procedures of Family Rights, JLS/C4/2005/06, The Hague, 19 December 2007 http://ec.europa.eu/civiljustice/publications/publications_en.htm. Frohn, NIPR 2016, 441, 443. See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 p. 5. See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 p. 11. See Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), COM (2016) 411/2 p. 4.

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declaration of enforceability, i.e. the exequatur proceedings as intermitting proceedings). Mutatis mutandis, these are mirrored in Arts. 31–36 Proposal. Furthermore, the Proposal ventures to introduce a number of rules, Arts. 40–47, dealing with refusal of enforcement. “Enforcement” needs to be taken literally at face value. It must not be confused with declaration of enforceability, i.e. exequatur. Arts. 40–47 Proposal are modelled on Arts. 46–51 Brussels Ibis Regulation. Clearly, Brussels Ibis is the standard setter, and “Brussels IIter” or “Brussels IIbis (Recast)” will follow the leader once it will be promulgated. II. Legislative History 2 It has been a constant in the family of Brussels judgments instruments that the issue of

enforcement is governed by the law of the Member State in which enforcement is sought. Hitherto this has been implicit,6 for whilst the earlier variants of Brussels II included provisions entitled ‘Procedure for Enforcement’7 these were concerned not with practical measures for execution but with the formalities for securing the exequatur of foreign judgments. To those coming to the Regulation for the first time this classification will be surprising, but it must be placed in context for the sections in which these provisions were found had been designated ‘Enforcement’ even though their focus was in fact on the application for a declaration of enforceability.8 The revised Regulation saw a re-alignment of the sections and their titles, one largely imposed by the integration of the rules giving effect to the policy of mutual recognition. In this new order express reference was made to actual enforcement procedure for the first time, with the first paragraph of Art. 47 acknowledging the uncontroversial and accepted reality with regard to the applicable law. The second paragraph of the Article is also new and emerged in the negotiations following the submission of the 2002 Commission text.9 Drawing heavily on the drafting of the ‘Enforceable Judgments’ provision,10 it is also only providing clarification, confirming that certified fast track orders or judgments declared enforceable, shall be enforced in the Member State of enforcement in the same conditions as a domestic order rendered in that State. 3 The second limb of paragraph two is the most noteworthy element of Art. 47. The substan-

tive principle, namely affording priority to a subsequent enforceable judgment is not new to the Regulation for it features among the standard grounds of non-recognition.11 In this instance, though, the priority is over certified fast track orders. Automatic enforceability may remove the possibility of any challenges to recognition, but does not shield orders from changes in a child’s life12 and since fast track judgments are not subject to any time bar13 the situation may arise whereby the original order conflicts with a later one. Art. 47 (2) subpara. 2 takes account of this and explicitly allows for an enforceable later order to prevail. This 6 7 8 9 10 11 12 13

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Report Borrás para. 81. Art. 22 Brussels II Convention; Art. 23 Brussels II Regulation. Title III, Section 2 Brussels II Convention and Chapter III, Section 2 Brussels II Regulation. OJ 2002 C 203/155. Art. 28. Art. 23 (f) and (g). See for example: Re S. (Brussels II (Revised): Enforcement of Contact Order) (2008) 2 F.L.R. 1358. Other than the children concerned reaching their majority. A United Kingdom proposal to introduce a temporal limit for judgments coming within the fast track recognition regime was rejected, see: JUSTCIV 120, 5 September 2002.

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clause, which is somewhat hidden within rather innocuous affirmations about enforcement, may not be categorised as a ground of non-recognition but in substance it plays the same role, although strikingly it is wider in scope than the corresponding grounds in Art. 23. Conceptually Art. 47 (2) subpara. 2 shows the limits of mutual recognition and how this policy is more about changing perception and thus practice than revolutionizing the rules on the movement of judgments in Europe. III. Scope of Application The distinction drawn by the Brussels judgments instruments between enforceability and 4 enforcement may in practice impair the full movement of rights and awards, but this traditional structure is understandable from both legal and political perspectives. In the absence of automatic compliance any judgment, whether foreign or domestic in origin, may have to be subject to measures of execution. The Regulation of such procedures will in turn depend on the legal system in question and thus be influenced by the traditions and practices of each jurisdiction. A two-tier enforcement regime for foreign and domestic orders would be neither practicable nor palatable, whilst the alternative, a general harmonisation of civil enforcement rules, would be an endeavour of unparalleled ambition,14 particularly given the problems surrounding the enforcement of domestic family law orders in certain jurisdictions.15 The issue to be addressed therefore is how courts should respond when applying their national standards to the enforcement of European judgments. The autonomy the provision affords is however far from absolute. On the one hand courts should be inspired by the spirit of the Regulation which by its very nature seeks the effective and efficient enforcement of all orders; on the other, when faced with a petition for execution, they must act in accordance with the positive obligations regarding enforcement which arise out of the European Convention on Human Rights. 1. ECHR Case law In contrast to the reticence of the Community institutions the European Court of Human 5 Rights has broken new ground in addressing the modalities of the enforcement of family law orders in general and the execution of return orders in particular.16 Among the positive obligations the Court has found to be inherent in the respect for family life embodied in Art 8 (1), is the requirement for national authorities to take measures to reunite parents with their children. Initially centred on public law care cases17 this right, which is not absolute,18 14

15 16 17

The issue of enforcement, so long ignored at Member State and Community levels, is now attracting increasing attention, see for example: Hess, Study On Making More Efficient The Enforcement Of Judicial Decisions Within The European Union: Transparency Of A Debtor’s Assets, Provisional Enforcement And Protective Measures, Attachment Of Bank Accounts, JAI/A3/2002/02, http://europa.eu.i nt/comm/justice_home/doc_centre/civil/studies/doc/enforcement_judicial_decisions_180204; Commission of the European Communities, Effective Enforcement of Judgments in the European Union: the Transparency of Debtors’ Assets, COM(2008) 128 final. And it has now gained a foothold on the Community legislative agenda: The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ 2005 C 53/1 at 13, para. 3.4.2. See supra fn. 1. See Fiorini, (2006) 51 McGill L.J. 3, 36 et seq. Eriksson v. Sweden (Application no. 11373/85) (1989) ECHR 10.

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was extended to private law situations19 and has been successfully relied upon in cases of child abduction20 and contact.21 A central issue in these cases related to the failure of the States concerned to take all the necessary steps to facilitate the execution of a relevant court order, whether the latter related directly or indirectly to the return of a child in a case of abduction, or, gave effect to a contact regime.22 These rulings have led to domestic reforms23 and have shown to all Council of Europe Member States that the issue of enforcement must be taken seriously. 6 As each case turns on its own facts and the State concerned has a margin of appreciation as

to how it should act there is no formal minimum standard as such with regard to enforcement. Nevertheless the judgments make clear that Member States must act with expedition since the passage of time can have irremediable consequences for a parent-child-relationship. In this the Court has highlighted delays or periods of inactivity of a relatively short duration ranging from eight to twelve weeks.24 Furthermore the use of sanctions must not be ruled out in order to enforce a judgment if the parent having care of the child has acted unlawfully.25 However, the Court has also ruled that coercive measures against children are not desirable and that particular regard must be paid to the best interests of a child if he or she has spent a significant period of time with the other parent.26 In addition the Court has acted in a robust manner in rejecting justificatory arguments advanced by national authorities, notably where it has been argued that the respondent parent has not cooperated with the enforcement procedure either by hiding the children27 or not making them available for 18

19 20

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This is relevant in situations where the child has not been in contact with the applicant parent for some time and preparatory measures may be needed prior to a reunion: Hokkanen v. Finland (fn. 1) para. 58. Moreover a balance has to be struck between the various interests involved, whilst the actions, or inactions, of the applicant will equally be relevant: Kaleta v. Poland (Application no. 11375/02), 16 December 2008 nyr, available online. Kaleta v. Poland (Application no. 11375/02), 16 December 2008 nyr, available online. Ignaccolo-Zenide v. Romania (Application no. 31679/96) (2001) 31 EHRR 7; Sylvester v. Austria (fn. 1); Iglesias GIL & A.U.I v. Spain, (fn. 1); Maire v. Portugal (fn. 1); H.N. v. Poland (fn. 1), Monory v. Hungary & Romania (Application no. 71099/01) (2005) ECHR 209; Karadžić v. Croatia (Application no. 35030/04) (2005) ECHR 871; P.P. v Poland (Application no. 8677/03), 8 January 2008 nyr, available online. Iosub Caras v. Romania, (Application no. 7198/04), (2008) 47 E.H.R.R. 35; Carlson v. Switzerland, (Application no. 49492/06), 8 November 2008 nyr, available online; In Deak v. Romania and the United Kingdom, no. 19055/05, (2008) 47 E.H.R.R. 50 the Romanian authorities were found to have breached Article 6(1) where Hague Convention related proceedings were not processed with the requisite degree of expediency. Hokkanen v. Finland (fn. 1) and Zawadka v. Poland (fn. 1). Cf. Monory v. Hungary & Romania where the core issue was the blatant misapplication of the 1980 Hague Convention; Iosub Caras v. Romania (fn 15) and Carlson v. Switzerland (fn 15) where, inter alia, delays were central to a finding of a breach of Article 8 rights. This is notably the case in Romania where in the aftermath of the Ignaccolo-Zenide case comprehensive rules were put in place to ensure the optimum application of the 1980 Hague Convention, see: Law No. 369/2004 on the Application of the Hague Convention on the Civil Aspects of International Child Abduction, Official Journal, No.888, 29 September 2004. Sylvester v. Austria (fn. 1) para. 67; H.N. v. Poland (fn. 1) paras. 79, 81. Ignaccolo-Zenide v. Romania (fn. 15) para. 106; Maumousseau and Washington v. France, (Application No. 39388/05), 6 December 2007 nyr, available online, para. 83. Sylvester v. Austria, (fn. 1) para. 58.

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access,28 or that the applicant has failed to comply with a particular prescribed procedure in the domestic enforcement process.29 It is clear that the judgments on the issue of enforcement have reinforced the 1980 Hague 7 Convention, indeed since the Ignaccolo-Zenide case the Court has affirmed that the positive obligations Art. 8 imposes on Member States in reuniting parents and children must be interpreted in the light of the 1980 instrument, particularly where the respondent State is a party to the latter. The strong pro-return message of the Hague Convention, combined with the flexible exception rest easily with the European Court’s pronouncements to promote reunion yet with due respect paid to the best interests of the individual child where appropriate.30 The enforcement of Art. 11 (8) return orders under the new Brussels IIbis inspired Community child abduction regime will undoubtedly lead to the European Court facing a politically sensitive and challenging re-appraisal of this issue. However, even at this juncture it should be noted that the Court has already acknowledged that in exceptional situations a change in the relevant facts may justify the non-enforcement of a final return order.31 2. Standard Track Enforcement An exequatur procedure, even one as refined as in the Brussels instruments, will bring delay, 8 inconvenience and cost implications, nevertheless the imprimatur of the local jurisdiction will lend an authority to the foreign order which should only be of benefit if enforcement measures are required. The judgments with which this standard track will be concerned will be those dealing with matters of parental responsibility, excluding certified access and return orders, as well as costs orders made in matrimonial and parental responsibility proceedings.32 The manner of enforcement will depend on the Member State concerned, it may be under direct judicial supervision, left to the applicant to arrange or be placed in the hands of enforcement agencies.33 Whatever the form it is for national law to decide on how the enforcement is implemented in respect of each individual judgment. One might question though to what extent there is complete freedom in this regard for total discretion could lead to wholesale modification of judgments34 or even non-enforcement. Clearly exploitation of national rules in this sense would be contrary to the aims of the Regulation and would 27 28 29

30

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32 33

H.N. v. Poland (fn. 1) para. 82. Zawadka v. Poland (fn. 1) paras. 59 et seq. Sylvester v. Austria, (fn. 1) para. 71. However, the applicant’s actions may be relevant, if there has not always been cooperation with the authorities in the requested State: Ancel v. Turkey (Application no. 28514/04), 17 February 2009 nyr, available online. Neulinger and Shuruk v. Switzerland (Application no. 41615/07), 8 January 2009 nyr, available online; Maumousseau and Washington v. France, (fn. 22). Sylvester v. Austria, (fn. 1) para. 63. The material change should not though be brought about by the respondent State’s failure to take all the measures that it could reasonably have been expected to take to facilitate the execution of the order. Art. 49. For a comparison of enforcement measures applied to Hague Convention return orders in different States see: Hague Conference on Private International Law The Judges’ Newsletter, Spring 2004, available at: http://hcch.e-vision.nl/index_en.php?act=publications.details&pid=3118&dtid=3 Further information on enforcement measures is available on the Hague Conference website, see: http://www.hcch.net /index_en.php?act=conventions.publications&dtid=33&cid=24.

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undermine the regime the Member States have undertaken to put in place. However, where judgments impact on children a certain margin of flexibility may be required, or preparatory measures taken, in order to give effect to a foreign order.35 Purists might question any deviation from the terms of the foreign order but this would be to ignore the realities of family law as well as the guidance of the European Court on Human Rights. 3. Fast Track Enforcement 9 The automatic enforceability of judgments is a progressive step and shows the extent to

which legal integration has been advanced but it will inevitably take time before courts and enforcement agencies are comfortable with processing foreign orders which have hitherto had no contact with the domestic legal system. It should also be recognised that formal requirements which may operate under national law to standard track judgments with regard to translation should not be applicable to judgments which are already enforceable, otherwise the very achievement of mutual recognition would be undermined.36 Nevertheless it is essential for courts in the Member State seized to be able to understand what is to be enforced. To this end the accompanying standard forms should provide a measure of clarity with regard to basic information, and key elements of these are to be translated.37 While this may not always be sufficient, much will nevertheless depend on the precision of these core translated elements. If enforcement is to be facilitated issuing courts must take into account the role certificates will play and therefore provide as much detail as necessary and avoid the use of terms or concepts having nuanced meanings under the law of the Member State of origin.38 a) Access Orders 10 Few categories of orders give rise to as many difficulties in terms of enforcement, legal as well

as practical, as access orders. If a contact regime is to succeed and a child is to grow up knowing both mother and father then it is essential that there be trust and cooperation between the parents. Where the primary carer, for whatever reason, does not wish to facilitate contact then the options are limited and effective coercive measures such as fines, imprisonment or a transfer of care to the non-custodial parent39 may have a negative impact on the child concerned.40 It may equally be the case that the child concerned does not wish to 34

35

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A fact recognised by the Commission in the Working Document Mutual Recognition of Decisions on Parental Responsibility, COM(2001) 166 final, p. 17. For an example of a court endorsing a strict interpretation of the obligation to enforce in the context of Brussels II, albeit combined with limited flexibility, see: Re M. (A Child) (Jurisdiction: Foreign Contact Order) (2003) EWHC 2974, (2003) All ER (d) 136, (F.D., Holman J.). Case C-195/08 PPU Rinau v. Rinau, (2008) ECR I-5271. Annex III, point 12 and Annex IV, point 14. Where a party to enforcement proceedings wishes to rely on an element in the judgment which is not covered in the translated portion of the certificate then the onus will be on that party to provide a certified translation, in accordance with the standards applicable in the Member State in question. A result sanctioned in the English first instance case: Re M (Intractable Contact Dispute: Interim Care Orders) (2003) EWHC 1024 (Fam), (2003) 2 FLR 636 (F.D., Wall J.). A new legislative initiative in that jurisdiction has increased courts’ powers in cases involving breach of a contact order by adding a power to make enforcement orders imposing an unpaid work requirement and a power to order a person to pay compensation to another for a financial loss caused by a breach, Children and Adoption Act 2006.

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see or go to stay with the other parent.41 These difficulties exist internally and will inevitably be replicated with foreign access orders. Indeed the situation is likely to be even more difficult because of the uncertainty surrounding the extent of the discretionary powers the court of enforcement will have to render a contested contact order enforceable and the role the court in the Member State of origin should play.42 A distinct legal problem which may arise is how to respond where an applicant seeks the enforcement of an access order which clearly no longer reflects the realities of the child’s life. Where such a stale order is in conflict with a subsequent enforceable decision then Art. 47(2) will come into play, but such an option may not always be open. Should the court seized be entitled to exercise jurisdiction, it may seek to render a countermanding judgment, otherwise it may simply seek to exercise its powers under national law, and undoubtedly under the European Convention,43 to act in the best interests of the child and thereby not to recognise the order.44 b) Return Orders The issue of child abduction was undoubtedly the most controversial in the revision of the 11 Brussels II Regulation and it might be said that the end result is somewhat at variance with the Brussels tradition of mutual trust and respect for foreign judgments.45 Since 1 March 2005 an Art. 13 non-return order granted in Hague Convention proceedings can be reviewed by the authorities in the child’s State of habitual residence,46 and, if the resultant decision is to have the child returned then that order, if duly certified,47 will take precedence over the earlier Hague order and be automatically enforceable in the Member State of refuge.48 Notwithstanding the highly politicised origins of the complex new system, if the authorities in the State of refuge and the State of habitual residence communicate and work together towards an integrated solution the regime will be able to flourish and a real symbiosis will be able to develop between the Hague Convention and the revised Brussels Regulation.49 It is still too early to evaluate the functioning of the dual instrument approach but it is self- 12 evident that not all Member States will have the resources or volition to achieve such an optimum result in every case. Consequently courts that have rendered non-return judgments may, without prior indication, find themselves facing countermanding orders from the authorities in the child’s State of habitual residence.50 The natural implication of the 40

41

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43 44

45 46 47 48 49

See the discussion in the English first instance case: Re D (Intractable Contact Dispute: Publicity) (2004) EWHC 727 (Fam), (2004) 1 FLR 1226, (F.D., Munby J.). See for example: Kosmopoulou v. Greece (Application no. 60457/00) (2004) ECHR 58, or in the context of custody Damnjanović v. Serbia (Application no. 5222/07), 18 November 2008 nyr, available online. See Art. 48. Cf. Re M.L. and A.L. (Children) (Contact Order: Brussels II Regulation), (No. 2) (2006) EWHC 3631 (Fam), (2007) 1 F.C.R. 496. Cf. Sylvester v. Austria, (fn. 1) para. 63, in the context of a return order. Re S. (Brussels II (Revised): Enforcement of Contact Order) (fn 8). Cf. Re D (Brussels II Revised: Contact) (2007) EWHC 822 (Fam), (2008) 1 FLR 516, para. 57 where it was suggested in such circumstances that the correct option might be to seek an amendment before the relevant court in the Member State of origin. McEleavy, (2005) 1 JPrIL 5. Art. 11(7). Art. 42. Art. 11(8). McEleavy, (2005) 1 JPrIL 5, 34.

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Regulation is that this new judgment should be enforced without delay to allow the child to be returned to his or her State of habitual residence. In practice the response of the local authorities may be very different.51 13 No court wishes to be overruled. Within a legal system appeals, if granted, are rendered by a

hierarchically superior jurisdiction. Under the new child abduction rules the overriding custody order will be made by a foreign court, and one which is likely to be of equal or even inferior standing.52 This is the consequence of the legislative decision reached by the Council of Ministers and it is clearly not an excuse or justification for non-enforcement. Nevertheless it must be recognised that this system, by its essential nature, may not engender a climate which is conducive to efficient or effective enforcement. It is further reason why the authorities in the State of habitual residence should seek to act in tandem with their counterparts in the Member State of refuge. 14 An additional factor is the substance of the order to be enforced. The primary issue, the

return of the child, is pre-printed on the certificate which must accompany the judgment.53 However, no reference is made on the document to the modalities of the return. While guidance may be provided in the judgment itself it is almost inevitable that this is an issue which will require judicial intervention. It is also regrettable that the certificate does not require reference to be made to what should happen to the child upon return. Although such information is not strictly necessary in order to send the child back, it could provide reassurance and build confidence for the local authorities, the abductor and the child. In this it may be noted that if protective measures are to be taken then these should be recorded and translated.54 15 A court seized of enforcement proceedings and applying its own law will have a certain

discretion as to how it may act, but if the spirit of the Regulation is to be respected the merits of the judgment should not be called into question, even if the court continues to disagree in principle with the child being returned. That said there would appear to be two exceptional situations which might justify a more flexible approach and in extreme cases even nonenforcement.55 The first is where new facts arise which might lead to the child facing severe harm; the second where the child has objected to going back and continues to protest vehemently. The initial response in such circumstances should be communication with the authorities in the State of habitual residence and only if this does not lead to a satisfactory 50

51 52

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See for example Re A. (Custody Decision after Maltese Non-Return Order: Brussels II Revised) (2006) EWHC 3397 (Fam.), (2007) 1 F.L.R. 1923. Cf. Re A; HA v. MB (Brussels II Revised: Article 11(7) Application) (2007) EWHC 2016 (Fam), (2008) 1 FLR 289 where the same English High Court judge declined to issue a trumping order against a French non-return decision. Cf. Case C-195/08 PPU Rinau v. Rinau, (fn 33). Competence for Hague Convention proceedings is frequently concentrated and accorded to specialist jurisdictions, see: Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II Implementing Measures, Family Law, Bristol 2003, p. 29 et seq. Also available at: http://hcch.e-vision.nl/ upload/abdguide2_e.pdf. Annex IV, point 13. Point 14. Cf. Art. 47 (2) subpara. 2 discussed below.

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outcome should the court in the Member State of enforcement evaluate remedies under its national law. If non-enforcement is considered to be the only viable alternative then at least the court should be reinforced by the knowledge that this is an outcome which in exceptional cases is compatible with European Convention on Human Rights obligations. The Strasbourg Court has equally recognised that coercive measures may be necessary in 16 certain cases where an abductor is not prepared to comply voluntarily with an order requiring the return of a wrongfully removed or retained child. The steps a court can take to facilitate enforcement will of course depend on the law of the Member State in question.56 These may be focussed on the abductor in the form of fines and ultimately imprisonment,57 or on locating the children so they may be sent back independently. The latter may involve steps such as giving courts the power to question persons suspected of having knowledge of the children’s whereabouts,58 or in extreme cases, seizing the property of persons found to be assisting the abductor conceal the children.59 In certain jurisdictions the initiation of criminal proceedings may assist in having law enforcement agencies search for the children.60 The case law of the Court of Human Rights has made clear however that the initiation of enforcement steps is not of itself sufficient to comply with Article 8 obligations, for these measures themselves must be enforced.61 4. Art. 47 (2) subpara. 2 It is also the case that the Regulation itself specifically mandates that fast track orders cannot 17 be enforced where there is irreconcilability with a subsequent enforceable judgment. This is not so much a derogation from the principle of mutual recognition but an acknowledgement that where matters relating to parental responsibility are concerned intervening events and consequently revised judgments cannot be ignored. Had nothing been said the matter would simply have been left to the law of the Member State of enforcement and in the vast majority of cases the end result would surely have been the same.62 The incorporation of Art. 47 (2) subpara. 2 though provides clarity by upholding the position of the more recent order where there is a direct conflict.63 56

57 58

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61 62

63

To that end it may be noted that in Maire v. Portugal (fn. 1) para. 76; the European Court affirmed that even if the domestic legal order does not allow for the imposition of effective sanctions, “each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it by Article 8 of the Convention and the other international agreements it has chosen to ratify.” For example for the position in Poland see: H.N. v. Poland (fn. 1). This is provided for in the statute implementing the 1980 Hague Convention in the United Kingdom: Child Abduction and Custody Act s. 24A. See for example the English first instance case: Re S (Abduction: Sequestration) (1995) 1 FLR 858, (F.D., Johnson J.), see also CH v. RN, BN, KB (2009) EWHC 640 (Fam). Report and Conclusions of the Special Commission Concerning the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 27 September–1 October 2002, para. 54, available at: http://hcch.e-vision.nl/upload/abd2002_rpt_e.pdf. Karadžić v. Croatia (fn. 1) para. 61. Cf. the aspiration of the Bundesgerichtshof to disregard an irreconcilable judgment in Italian Leather SpA v. WECO Polstermöbel GmbH & Co., (Case C-80/00) (2002) ECR I-4995. The possibility of Art. 47(2) subpara. 2 being activated as regards an Article 42 return order must be

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18 The terms of the sub-paragraph are notable for their breadth of scope; not only does the

provision have the potential to apply to orders rendered in the Member State of enforcement and other Member States, but any other jurisdiction, whether or not the child had been habitually resident there at the time the judgment was made.64 Of course any danger of rogue judgments, taken on exorbitant grounds of jurisdiction, being afforded precedence is curtailed by the requirement that the judgment be enforceable. Courts will though have to decide on the interpretation to be given to this element. Applicable domestic orders will clearly be covered as will foreign judgments which have formally been declared enforceable, but what of foreign orders which appear to fulfil the conditions necessary to be enforceable,65 and within this category should a distinction be drawn between Member State judgments and non-Member State judgments. A strict interpretation would suggest not. This is the simple solution but it could lead to unfair and inappropriate results. For example, a mother is awarded care of her son by a court in France and is also permitted to relocate to the Netherlands; the father is granted access, including one month with the child in France every summer. Subsequently, after apparent inappropriate behaviour by the father, the mother brings proceedings in the Netherlands and is awarded sole custody and all staying contact is ended. Mother and child then move to the United Kingdom whereupon the father seeks to enforce his summer contact according to what remains the automatically enforceable French order. At this time the Dutch order has not been registered in the United Kingdom and so could not prevent the enforcement of the stale French judgment if Art. 47 (2) subpara. 2 were to be interpreted strictly. However, given the streamlined mechanism which exists in the Regulation it would appear appropriate in such circumstances to allow the parent seeking to rely on the more recent Member State order the chance to obtain a declaration of enforceability before allowing the earlier judgment to be enforced. But what if the facts of the example were identical but mother and child had moved to the United States instead of the Netherlands? Certainly a declaration of enforceability for an order rendered in the United States might not be obtained so readily but the underlying issue remains the same and if the best interests of the child are to be protected then surely here also enforcement should be delayed until a decision is reached on the more recent judgment. 19 This leaves the outstanding issue of ‘irreconcilability’ itself. Here guidance can be sought

from the interpretation given to the concept by the European Court of Justice in the context of the 1968 Brussels Convention. Adopting a strict approach, it was held in Hoffmann v. Krieg66 that the core issue was whether the judgments entailed legal consequences which were mutually exclusive. In that case incompatibility was readily apparent where recognition was sought of an order obliging a husband to make maintenance payments to his wife by virtue of his marital obligations in a Member State where an order ending the matrimonial tie had already been granted. Such a clear divergence may not always exist and this is particularly likely to be true where access orders are concerned. To give an example the

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extremely limited if the terms of Arts. 10 and 11 are respected. Given the strictness of Art. 10 in preserving the jurisdiction of the original State of habitual residence, the only obvious situation where a subsequent irreconcilable judgment might legitimately be made would be if a significant delay to have the return order enforced was interpreted by the authorities in the State of refuge as amounting to acquiescence in the removal or retention: Art. 10(a). Cf. Art. 23 (f). Cf. Art. 23 (f). Hoffmann v. Krieg (Case 145/86), (1988) ECR 645.

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order for which enforcement is sought may provide that the child concerned shall spend a total of eight weeks per year in the State of the non-custodial parent, while a more recent order rendered in the child’s new State of habitual residence provides that only three weeks shall be so spent and that this shall be in the summer vacation. The principle of transfrontier contact is upheld in both instances, but the practical operation is clearly quite different. One must question though whether the inconsistency between the two orders is so great that their effects might be deemed to be mutually exclusive. A literal interpretation of the term irreconcilable, relying on the ordinary and natural meaning of the word, and inspired by the case law of the ECJ, would suggest that many contact orders might conflict but yet not fall within the scope of Article 47(2) subpara. (2). At first glance this may appear to be problematic, however, it must be recalled that the procedure for enforcement is governed by the law of the Member State of enforcement. Consequently where Art 47(2) subpara. (2) does not apply courts will have a discretion how to act and will certainly not be under any obligation to enforce an earlier order over a more recent one. Article 48: Practical arrangements for the exercise of rights of access 1. The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected. 2. The practical arrangements made pursuant to paragraph 1 shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter.

I. Preliminary Remarks Organising and regulating access is not only difficult but controversial.1 Children have the 1 right to grow up knowing both their parents and their cultures,2 but if judicial intervention is needed how should that contact be managed? How frequently should a non-custodial parent be able to see his or her children; where should such contact take place; how long should contact last; when should it occur; how should allegations of abuse or inappropriate conduct be dealt with; when should supervised contact be imposed; how should such contact be overseen? If an access regime is to be effective and capable of enforcement it will have to be drafted with 2 sufficient detail so all parties are aware of the precise nature of their obligations and how contact is to be arranged. Where contact is to take place in the Member State of origin the trial judge will be able to take account of local amenities and services in making the order, equally he or she will be able to respond to any difficulties which arise with regard to implementation. However, if the child is not living in that State it may be impossible for the court seized to deal with the issue of access in anything other than general terms. 1 2

Making Contact Work (Art. 47 fn. 1). UNCRC, Art. 9 (3).

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Furthermore if the child has relocated from the State of origin since the order was made any practical arrangements may be out of date and the possibility of on-going supervision rendered more difficult. 3 In the light of the above one could argue that access orders were an ill-advised choice for the

first trial of the mutual recognition policy. Whatever one’s perspective there are certainly clear limits to the extent that foreign access judgments can be fully assimilated with domestic ones. It was clearly in recognition of this that courts in the State of enforcement were afforded a limited power through Art. 48 to review the foreign order to assess the modalities of its operation. Given the much heralded abolition of exequatur this may appear a surprising and indeed retrograde step which theoretically is at odds with the Tampere conclusions,3 but it was a practical necessity. The alternative was to consign to a form of limbo a category of access orders which whilst classified as enforceable would in practice be incapable of being enforced. II. Legislative History 4 Art. 48 is an entirely new provision. Indeed not only was there no equivalent Article in either

the Brussels II Convention or Regulation but there was no reference to the practical arrangement of access rights in either the French Access proposal of July 20004 or the complementary Commission proposal of September 2001.5 The issue was dealt with for the first time in the composite Commission text of May 2002.6 That original draft was carried with very few changes to the text adopted in November 2003. The only significant amendment was the precision that intervention could occur, not only if the necessary practical arrangements had not been made in the access order, but if they had “not sufficiently been made”. This clearly widened further the discretion of the court in the State of enforcement to intervene, but the practical necessity for this power is self-evident if effective enforcement is to be guaranteed. 5 A provision such as Art. 48 may be new in a Community context but it is not without

precedent in a regional judgments convention. Art. 11 (2) of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children7 affords the competent authority in the State of enforcement the power to fix conditions for the implementation and exercise of the right of access. Whilst this discretion is not limited in the manner of Art. 48 the competent authority may in no circumstances review the foreign decision as to its substance. Experience in the United 3 4

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http://www.europarl.eu.int/summits/tam_en.htm. Initiative of the French Republic with a View to Adopting a Council Regulation on the Mutual Enforcement of Judgments on Rights of Access to Children O.J. 2000 C 234/07. Proposal for a Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matters of Parental Responsibility O.J. 2001 C332/269. Art. 51, Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance, OJ 2002 C 203/155–178. ETS No.105. See also the 2003 Convention on Contact Concerning Children, Art. 15: http://conventions. coe.int/Treaty/EN/cadreprincipal.htm.

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Article 48

Kingdom has shown Art. 11 (2) can have an important role to play.8 One might question therefore why an equivalent provision only emerged in the revised Brussels II Regulation. The answer undoubtedly lies in the implementation of mutual recognition and the fear that this core policy might be perceived as failing, albeit because of defective orders, as well as, the realisation that in the absence of any temporal limitation fast track orders may become stale, at least with regard to their practical implementation.9 III. Scope of Application While mutual recognition undoubtedly led to the incorporation of Art. 48 its terms are 6 applicable to all access orders whether or not falling within the fast track recognition regime. This was the only logical option open to the drafters as shortcomings in practical arrangements depend on the substantive order and are not related to the mode of recognition. 1. Evaluation of the Foreign Access Order The rationale underpinning the Brussels judgments instruments is clear in prohibiting any 7 form of review of the substance of a judgment by a court in the Member State of enforcement.10 The double convention model is dependent on there being trust and respect between courts in different Member States and the ECJ has given no quarter in rigidly enforcing adherence to these principles whatever the consequences.11 Art. 48 is a clear break from this tradition for it in effect empowers the court in the State of enforcement to undertake an evaluation of the foreign judgment. Methodologically this is significant but in practice the scope to review is limited; it is not a consideration of the merits of the decision reached with regard to access but an assessment of whether any or sufficient practical arrangements have been made for organising the rights of access under consideration. The power to consider and introduce additional measures is clearly within the discretion of the court seized. Most commonly this will be in the context of enforcement proceedings, but a party who recognises an order to be deficient or out of date may seek to make an independent application to this effect in the Member State of enforcement.12 2. Practical Arrangements for Organising the Exercise of Rights of Access At first glance a literal interpretation of the title of Art. 48 would suggest the provision is 8 solely concerned with such mundane matters as identifying where and at what time children should be picked up or dropped off, or, the location of a venue where supervised contact might take place. These are issues which a foreign court might not reasonably be expected to specify or which might require amendment over the passage of time. Seen in these terms 8 9

10 11

12

Re G. (Foreign Contact Order: Enforcement) (2003) EWCA Civ 1607, (2004) 1 FLR 378 (C.A.). During the negotiation of the revised Brussels II Regulation the United Kingdom had proposed a temporal limit for the fast track recognition regime, see: JUSTCIV 120, 5 September 2002. See for example Art. 26 Brussels IIbis. Krombach v. Bamberski, (Case C-7/98) (2000) ECR I-1935; Régie Nationale des Usines Renault SA v. Maxicar SpA: (Case C-38/98) (2000) ECR I-2973; Apostolides v. Orams, Case C-420/07, (2009) ECR I-3571. An independent procedure for seeking practical arrangements has been established in Scotland, see: Rules of the Court of Session, r. 62.80, http://www.scotcourts.gov.uk/session/rules/chapter62_11.asp.

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Art. 48 is relatively straightforward and readily applicable. However, the evolving nature of family dynamics is such that arrangements of a more substantive character may often be necessary if a judgment is to be capable of enforcement. If, for example, a child refuses to see the non-custodial parent should it be possible for the access regime to be amended? Could a court in the Member State of enforcement specify that sessions of supervised contact take place to allow the parent-child-relationship to be assessed? It is in this context that the precise role of Art. 48 gives rise to uncertainty. The court in the Member State of enforcement clearly does not have jurisdiction to regulate access rights and therefore cannot simply substitute its own views.13 At the same time it would be time consuming and costly as well as disadvantageous to the applicant and children if an application had to be made in the Member State of origin each time an minor amendment was to be considered. 9 The dividing line set by Art. 48 is without doubt more restrictive than that established by

Art. 11 (2) of the Council of Europe Convention, but it would be wrong to think of the former as permitting solely very minor logistical changes. A wider scope would appear to have been within the contemplation of the drafters for after detailing the circumstances in which intervention may take place, Art. 48 (1) ends with an affirmation that the ‘essential elements’ of the access order must be respected. This would suggest a certain margin of flexibility for the Court in the Member State of enforcement.14 Regrettably there is no guidance to aid understanding of the provision as meaningful advice is absent from both the Commission Practice Guide15 and the annotated version of the 2002 Commission draft.16 A further issue to be resolved is whether Art. 48 will permit a court in the Member State of enforcement to intervene to make practical arrangements on an on-going basis. In this one might envisage a situation where the practical arrangements originally made prove to be unsatisfactory or unworkable, or, continuing judicial supervision is required. 10 In striking a balance between respect for the foreign order and ensuring the designated

access regime is capable of enforcement, it is submitted that courts should use the power in Art. 48 to ensure that contact can always take place and, if necessary, be subject to enforcement measures. If though a court feels constrained from departing in any way from the terms of the original order, and as a consequence it is not possible to put in place an enforceable contact regime, then recourse might be had to Art. 20.17 Ensuring some form of contact when none would otherwise occur is arguably a matter of urgency and one where the Member State of enforcement could justifiably take provisional measures. In both instances the court in the Member State of enforcement would be assured that should the authorities in the Member State of origin not approve of the measures taken the latter could be automatically overridden by a subsequent order of the competent court.18 13

14

15

16 17

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Re S-R (Jurisdiction: Contact) (2008) 2 FLR 1741; Re S. (Brussels II (Revised): Enforcement of Contact Order) (fn 8). See for example Re M. (A Child) (Jurisdiction: Foreign Contact Order) (2003) EWHC 2974, (2003) All ER (d) 136, (F.D., Holman J.) which considered the enforcement of an access order under the original Brussels II Regulation. Commission Practice Guide for the Application of the New Brussels II Regulation (June 2005) p. 27, http://europa.eu.int/comm/justice_home/doc_centre/civil/doc/parental_resp_ec_vdm_en.pdf. COM (2002) 222 final/2, 17 May 2002. Recourse to Art. 20 pending enforcement is explicitly recognised in procedural rules applicable in England and Wales: Family Proceeding Rules 1991, r. 7.47 (3).

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Article 49

However courts respond to the new Community regime it is clear that mutual recognition 11 rules will not of themselves provide a complete answer to problems of transfrontier contact. As with the Community child abduction rules, this is an area where integrated responses involving the authorities in both the Member State of origin and the Member State of enforcement will be required if effective and durable results are to be achieved. Central to this will have to be direct judicial cooperation.19 If the court in the Member State of origin can be involved when difficulties arise in rendering an order capable of enforcement then the possibility of conflicts or conversely delays can be diminished and the chances of a successful solution increased. Article 49: Costs The provisions of this Chapter, with the exception of Section 4, shall also apply to the determination of the amount of costs and expenses of proceedings under this Regulation and to the enforcement of any order concerning such costs and expenses.

Art. 49 is the first manifestation of a separate costs provision in the Brussels judgments 1 instruments. The essence of the Article has though existed since the original 1968 Convention.1 The current version replicates the core elements of Art. 13 (2) of the Brussels II Convention which was in turn transposed to the Brussels II Regulation2 and the second Commission Proposal for the revised instrument.3 The decision to create a separate Article emerged in the subsequent negotiations and was required to provide clarity to the situation pertaining to costs in the light of the dual recognition tracks. Art. 49 affirms the established position that Chapter III (Recognition and Enforcement) 2 applies not only to substantive matters but also to costs and expenses. Clearly it is appropriate for costs and expenses to benefit from the free movement regime, but the impact of the Article will nevertheless be limited; contested matrimonial proceedings are rare therefore cost orders in this field will necessarily be few in number, whilst in parental responsibility related litigation the designation of a winner and loser is rarely appropriate if the best interests of the child are to be protected.4 18 19

1 2 3 4

Art. 48 (2) and Art. 20 (2). The Dutch Act on the application of the 1996 Hague Convention and Brussels IIbis contains a provision on international cooperation between courts, Art. 24. Art. 25. Art. 13 (2). Art. 26 (2) Proposal OJ 2002 C 203 E/155 et seq. In the United Kingdom (England & Wales) while the general rule in civil proceedings that the unsuccessful party will pay the successful party’s costs (Civil Proceedings Rules r. 44.3.2) does not extend to family proceedings, (Family Proceedings Rules r. 10.27 (1) (b)), there is still the power to award costs (CPR r. 44) although in children cases the practice is that this will only be exercised where there has been unreasonable behaviour by the party concerned, see: E C-L v. D M (Costs in Hague Convention Proceedings) (2005) EWHC 588, (2005) 2 FLR 772 (F.D., Ryder J.). In the context of an initially contested Art. 41 application see: Re C (Costs: Enforcement of Foreign Contact Order) (2007) EWHC 1993 (Fam.), (2008) 1 FLR 619.

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3 The construction of the provision ensures that not only distinct costs orders will be covered

but also those elements within a matrimonial or parental responsibility judgment dealing with costs. This is clear from the declaration that Chapter III will apply to ‘the determination of the amount of costs and expenses of proceedings’ in addition to ‘the enforcement of any order concerning such costs and expenses.’ In both cases the costs must relate to proceedings taken under the Regulation, thereby excluding, for example, costs awarded in the Hague Convention element of a child abduction case.5 Finally Art. 49 makes clear that costs orders will not fall within the fast track; therefore if a certified access or return order has dealt with the issue of costs then this part of the judgment would have to be recognised and enforced under the standard track.6 Article 50: Legal aid An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 21, 28, 41, 42 and 48 to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State of enforcement.

I. Preliminary Remarks 1 It is a truism that the financial implications of litigation concerning matters of custody and

access can be significant. Achieving a fair and just settlement which is also in the best interests of the children involved is rarely simple and can necessitate repeated hearings or additional challenges, particularly if one party is not satisfied with the results which initially emerge. Once an international dimension is added the complexities, and consequently the costs, multiply. The situation facing parents of modest means is daunting and many international custody disputes are undoubtedly dropped for a lack of resources.1 Generous financial provision would clearly be to the advantage of a significant number of parents and children but the fiscal and political consequences of such a policy would great, not least the unpalatable possibility of litigants involved in international cases receiving preferential treatment compared with those in purely domestic cases. 2 International and regional instruments have, unsurprisingly, adopted very different approa-

ches where legal aid provision is concerned. At one extreme the 1980 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children2 provides that aside from any repatriation expenses, no costs, including those incurred through the assistance of a lawyer, shall be sought from an applicant.3 In contrast in the 1996 Hague Convention on the Protection of Children, which 5 6 1

2

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See Art. 26 1980 Hague Convention. Art. 36. See Devers, in: Fulchiron (ed.), Conflit Familial, Déplacement d’Enfants et Coopération Judiciare International en Europe, Centre de Droit de Famille, Université Jean Moulin, Lyon III, Décembre 2002, 4.2 at p. 237. ETS No.105; http://conventions.coe.int/Treaty/EN/cadreprincipal.htm.

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Article 50

has a much wider scope and is designed as a global instrument, no reference is made to individual costs.4 The issue of costs was a divisive one during the drafting of the 1980 Hague Child Abduction Convention,5 so whilst Art. 26 (2) of the latter instrument seeks to relieve applicants from the costs and expenses of proceedings, including those arising from the participation of legal counsel or advisers, a reservation was included so a Contracting State could declare it would not be bound to assume such costs except insofar as the latter were covered by its system of legal aid.6 Whilst just over half of the 81 Members States have entered this reservation,7 free legal assistance is nevertheless provided in some of these, either through the provision of non means tested legal aid8 or the return application being brought by State prosecutors.9 This shows an awareness on the part of States, initially concerned about cost implications, of the special nature of abduction proceedings in which time is of the essence if the harm to the children involved is to be kept to a minimum. It is though also the case that abduction proceedings are summary in nature and finite in their duration – even after one or more appeals, a child is either to be returned or not – consequently there is little risk that the financial burden to a State will become limitless. II. Legislative History Entitlement to legal aid has featured in each of the Brussels instruments. The original version 3 of Art. 44 of the 1968 Brussels Convention gave rise to uncertainty due to the elliptical manner of its construction.10 This was corrected in the 1978 Accession Convention11 but still left a provision limited both in its scope and potential benefit; where an applicant had received legal aid of some form in the State of origin he would be entitled to the most favourable legal aid available, if any, in the State of recognition. This was however restricted to the issuing of the declaration of enforceability and did not extend to any appeal where the declaration might be challenged or any subsequent enforcement measures that might be required.12 The intention was simply to put applicants in an equivalent position to those seeking enforcement within the requested State. This “well meaning but apparently inefficient”13 rule was replicated in both the Brussels II 4 Convention14 and the original Brussels II Regulation.15 The wider scope of the revised 3

4

5

6 7 8

9 10 11 12 13 14

Art. 5(3). See the Explanatory Report, para. 29, available at: http://conventions.coe.int/Treaty/EN/Report s/Html/105.htm. Art. 38, see Lagarde, Explanatory Report, Proceedings of the Eighteenth Session, Tome II, Hague Conference on Private International Law, p. 542 at p. 595, para. 152. Pérez-Vera, Explanatory Report, Actes et documents de la Quatorzième session, Tome III, Hague Conference on Private International Law, p. 425 at p. 468, para. 135. Art. 42. 41 States, see: http://hcch.e-vision.nl/index_en.php?act=conventions.statusprint&cid=24. For example the United Kingdom, see for England & Wales, the Community Legal Service (Financial) Regulations 2000, SI 2000/516, r. 3 (1)(f). For example France, see: http://www.enlevement-parental.justice.gouv.fr/assistance.html. Report Schlosser, O.J. 1979 C59/71 at 80, para. 17. O.J. 1978 L304 1. Report Jenard, O.J. 1979 C 59/1 at 54. Schlosser, RdC 284 (2000), at p. 220. Art. 31.

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Regulation and its sensitive subject matter would have afforded the opportunity and justification for introducing a more far-reaching and imaginative provision but there is no indication that there was ever any consideration given to such a development. Indeed no reference was made to legal aid provision in either the French initiative on access rights issued in 200016 or the supplementary Commission proposal of 2001,17 whilst the composite Commission text of 2002 did not stray far from the traditional approach.18 This is to a certain extent surprising given the initial intention of the Commission and certain Member States was to replace the 1980 Hague Convention as the mechanism to deal with intra-Community cases of child abduction.19 If nothing else there has therefore been a financial advantage for parents of abducted children in the compromise which emerged in November 2002 to preserve the role of the Hague instrument with regard to the treatment of wrongful removals and retentions in the European Community.20 Nevertheless regard must also be paid to the wider context of the negotiations of the revised Brussels II Regulation, for at the same time work was ending on a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.21 This equally controversial dossier, which was the subject of disagreement between the Parliament and the Council,22 may provide some additional support for persons invoking the new Regulation, but these rules, although covering all civil and commercial matters, are very limited in the minimum standards they set. This is shown most clearly by the fact that in the United Kingdom after almost a year of operation only 1 application for legal aid had been received, whilst merely 22 had been transmitted to other Member States.23 III. Scope of Application 5 Art. 50 would appear to imitate its predecessors, replicating the standard drafting whereby

the focus is on an individual who has obtained a judgment in one Member State and is seeking to rely on it in another Member State. Where that person has benefitted from legal aid, whether complete or partial, in the State of origin then legal aid entitlement will extend to certain specified procedures in the Member State of enforcement. The development, albeit limited, in Art. 50 is that several procedures are now referred to, namely those in Artt. 21, 28, 41, 42 and 48. In the previous Brussels instruments the equivalent provisions simply identified a grouping of four consecutive Articles focussed on the ex parte application for a declaration of enforceability. 6 In identifying Art. 21 legal aid entitlement is now extended to an application simply to have 15 16 17 18 19

20 21 22 23

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Art. 30. See also Art. 50 of the Brussels I Regulation. See supra Art. 48 fn. 4 (McEleavy). See supra Art. 48 fn. 5 (McEleavy). Art. 52; see supra Art. 48 fn. 6 (McEleavy). Art. 25 of the proposal did provide that Central Authority assistance would be free and that costs could be claimed against the abductor. McEleavy, (2005) 1 JPrIL 5–34. Council Directive 2002/8/EC of 27 January 2003, O.J. 2003 L 26, 41–47. See CNS/2002/0020, 19/12/2002, http://www.europarl.eu.int/oeil/img/struct/files/icn_txt.gif. Parliamentary answer given by Bridget Prentice, Parliamentary Under-Secretary of State at the Department for Constitutional Affairs on 15 November 2005, Hansard, 15 Nov 2005: Column 1101W; www.par liament.the-stationery-office.co.uk/pa/cm200506/cmhansrd/cm051115/text/51115w15.htm.

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Article 50

a judgment recognised. The mechanism for recognition is identical to that for a declaration of enforceability24 consequently one must presume that as with previous practice legal aid will only be granted to the initial ex parte proceedings and not to any appeal. The impact of this change will therefore be very limited, though it may provide some assistance where the formal recognition of matrimonial judgments is sought. The reference to Art. 21 as a whole does though throw up a further possibility, albeit one not 7 likely to occur frequently. This relates to the fact that whilst Art. 21 covers applications for recognition it equally extends to applications for a judgment not to be recognised. Under a literal interpretation of Art. 50 if an applicant seeking a declaration of non-recognition had been in receipt of legal aid for the substantive proceedings in the Member State of origin then he would also be entitled to legal aid in the Art. 21 application in the other Member State concerned. As the procedure for non-recognition also follows that laid down in Section 2 of Chapter III the presumption must be that here too legal aid will only be available for the initial ex parte element of the proceedings. It is in Art. 28 that one finds reference to the traditional issue for which legal aid has been 8 available, namely the declaration of enforceability. As enforcement is not relevant to matrimonial orders the latter provision makes reference exclusively to judgments on the exercise of parental responsibility. As previously noted it is only to the initial granting of the declaration that any legal aid coverage will extend. If the party against whom the declaration is sought appeals the applicant will have to rely on national rules implementing Council Directive 2002/8/EC of 27 January 2003 to obtain legal aid. Art. 50 further extends legal aid provision to the procedures referred to in Artt. 41 and 42. 9 These are concerned respectively with access orders and Art. 11(8) return orders which shall be recognised and declared enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing recognition. Given that enforceability is automatic for such judgments which are certified as having satisfied the criteria in Artt. 41 (2) and 42 (2), i.e. they are to be treated as if they were national judgments, there is no procedure to comply with. Consequently for practical purposes the reference in Art. 50 would appear to be redundant. For the first time legal aid provision will extend to substantive matters by the inclusion 10 within the scope of Art. 50 of the new provision dealing with practical arrangements for the exercise of access rights.25 Access between children and a non-custodial parent will frequently require a high level of judicial control with very specific orders to regulate the modalities of the contact. Where, for example, supervision is necessary, or a neutral venue has to be designated, foreign courts are unlikely to have the requisite knowledge to include such information in the order, therefore clarification may be essential in the Member State of enforcement. Such intervention can justifiably be regarded as means of rendering the order capable of enforcement and as such this extension of coverage is therefore understandable within the traditional parameters of the legal aid provision. However, as previously noted there is an element of uncertainty as to the extent to which 11 24 25

Art. 21(3). Art. 48.

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Art. 48 can be relied on, in particular whether the court in the State of enforcement can revise practical arrangements on an on-going basis. If a court considered that it was entitled to so act on the basis of that provision there is then the issue as to whether the provision of legal aid under Art. 50 would extend to all such hearings or only to the original application to render the order capable of enforcement in the first instance. Certainly once one moves beyond an initial clarification of an access order it becomes difficult to make a clear distinction between finessing practical arrangements and addressing issues of enforcement, the latter having traditionally fallen outside the legal aid provision. Article 51: Security, bond or deposit No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in another Member State on the following grounds: (a) that he or she is not habitually resident in the Member State in which enforcement is sought; or (b) that he or she is either a foreign national or, where enforcement is sought in either the United Kingdom or Ireland, does not have his or her “domicile” in either of those Member States.

I. Preliminary Remarks 1 Litigants foreign to the jurisdiction in which they have commenced proceedings have tra-

ditionally, and indeed often remain, subject to requirements that they provide security for costs.1 This ensures that should the defendant prevail and secure an award of costs there will be funds in the jurisdiction against which the judgment can be enforced.2 The defendant, who may or may not be local to the forum, is thereby protected by being relieved of the possibility of having to bring enforcement proceedings in a foreign jurisdiction. Of course such provisions, depending on their construction, are at the same time discriminatory towards non-nationals or non-residents and act as a disincentive to inward litigation. It is of little surprise therefore that the removal of such impediments has a long history in attempts to reform international civil procedure law rules. The Institute of International Law advocated equality of treatment for foreign litigants in 18773 whilst the Hague Conference on Private International law sought the removal of the security for costs burden as early as 1905 in the (frist) Hague Convention on Civil Procedure,4 an aim repeated in the successor instruments of 19545 and 1980.6 1 2

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See for example in England & Wales, Civil Procedure Rules r. 25.12. In Tolstoy-Miloslavsky v. United Kingdom (1995) 20 EHRR 442 the European Court of Human Rights ruled that the practice of ordering security for costs was not in itself contrary to Art. 6 of the European Convention. However, such a limitation had to pursue a legitimate aim and there had to be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. In that case the security for costs requirement was made with regard to an appeal application which was deemed to have a limited chance of succeeding. Institut de Droit International, Règles internationales proposées pour prévenir des conflits de lois sur les formes de la procédure, Session de Zurich, 1877, Art. 1, available at: http://www.idi-iil.org/idiF/resolution sF/1877_zur_05_fr.pdf.

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Article 51

II. Legislative History The lineage of Art. 51 may be traced through each of the Brussels instruments to Art. 45 of 2 the 1968 Convention. Whilst there have been drafting amendments introduced in each of the Brussels II variants of the provision,7 namely the reference to ‘habitual residence’ as opposed to domicile or residence, and the introduction of common law domicile as an alternative to nationality, the substance of the Art. 45 model has remained unchanged. The latter focuses on the core idea that a security for costs rule with regard to enforcement proceedings cannot be based on the absence of a factual link between the applicant and the forum (habitual residence), or, the absence of a legal nexus (nationality or common law domicile in the case of the United Kingdom or Ireland). III. Scope of Application The inclusion of a security for costs provision can be seen as logical for political as well as 3 practical reasons. A free movement regime, if it is to be effective should not be fettered by protective national rules. Moreover the justification which exists for the retention of such rules at a domestic level is nullified for matters falling within the scope of the Brussels regimes given the facility with which costs orders can now be enforced.8 The security for costs provision adopted in the 1968 Brussels Convention and followed 4 thereafter in subsequent instruments, took a much narrower focus than the corresponding Article in the 1954 Hague Convention. Unlike Art. 17 of the latter instrument the Brussels’ provisions were not concerned with substantive proceedings but solely with where the enforcement of a judgment was sought in another Member State. However, their construction was broader in that protection was provided to foreign nationals or foreign domiciliaries or foreign residents who had obtained a judgment in another Contracting State, whilst Art. 17 was limited to nationals of another Contracting State who were also domiciled in such a State. The more permissive approach of the Brussels’ rule is readily understandable in the light of the nature of the jurisdiction regimes put in place by the different instruments and under which it is not necessary to be European to avail of the free movement mechanism. As regards the concentration on security for costs in enforcement proceedings one can venture that in 1968 there was a reluctance to enter into substantive matters and as the Jenard Report makes clear, it was not deemed necessary to depart from the rules of the 1954 Convention, which it may be noted had bound each of the original parties to the 1968 Brussels Convention since 1 January 1960.9 The final factor could lead one to question whether a specialized security for costs provision was necessary, but of course not all subsequent parties to the 1968 Convention were parties to the Hague Convention. Once adopted the provision, as previously noted, has remained as part of the Brussels 5 formula ever since. This is notwithstanding other European developments and here one 4 5 6 7 8 9

Art. 17. Art. 17. Art. 14. Art. 32 1998 Brussels II Convention and Art. 31 original Brussels II Regulation. As regards Brussels IIbis see Art. 49. http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=33.

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can draw attention to the rulings of the ECJ with regard to security of costs requirements in Hubbard,10 Data Delecta,11 Hayes12 and Saldanha.13 In those cases the Court held that it was contrary to then Art. 6 (1), now Art. 12 (1) EC Treaty, to require a national of one Member State, bringing an action before the courts of another Member State, to furnish security for costs where such a requirement would not be imposed on nationals of the forum State who had neither assets nor a residence there.14 In the light of this general Regulation of the issue of security for costs and given the material scope of the Brussels II Regulation it might be questioned whether there was any need for the retention of the security for costs provision. In the absence of any travaux préparatoires it is not possible to ascertain whether this issue was indeed the subject of reflection, but given the substantive difficulties which plagued the negotiations and the pressure delegates were under it must be considered unlikely.15 6 The original spirit behind the Brussels model therefore continues to be reflected in Art. 51,

even if the provision itself has been overtaken by wider developments. Moreover the Art. does not relate to the issue to which bonds or financial guarantees are most closely associated by family law practitioners, namely as a preventative measure to ward against the risk of a child being wrongfully retained following a period of transfrontier contact.16 Article 52: Legalisation or other similar formality No legalisation or other similar formality shall be required in respect of the documents referred to in Artt. 37, 38 and 45 or in respect of a document appointing a representative ad litem.

I. Preliminary Remarks 1 An international instrument which seeks to facilitate the recognition and enforcement of

judgments will by its very nature lead to documents, most obviously court orders but also supporting material, which are issued in one Member State being produced and relied upon before the authorities of another Member State. Ascertaining the authenticity of such for-

10 11 12 13 14 15

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Anthony Hubbard v. Peter Hamburger (Case C-20/92) [1993] ECR I-3777. Data Delecta v. MSL, Case C-43/95 [1996] ECR I-4661. Hayes ./. KronenbergerGmbH, Case C-323/95 [1997] ECR I-1711. Saldanha and MTS, Case C-122/96 [1997] ECR I-5325. For a commentary on these cases see Ackermann, (1998) 35 C.M.L.Rev. 783. It may be noted that the Borrás Report on the Brussels II Convention states that the equivalent provision in that instrument, Art. 32, merely repeats the well established principle on cautio iudicatum solvi, OJ 1998 C 221/27 para. 101. Hague Conference on Private International Law Guide to Good Practice Under the 1980 Hague Convention: Part III – Preventive Measures, Family Law, Bristol, 2005 at p. 29. See also the Council of Europe Convention on Contact Concerning Children, 2003, Art. 10 (2)(b). The nature of requirements of this nature, with the money having to be deposited before the child can leave the jurisdiction, means that there is no issue of enforcement having to be sought in a third State. If the child is not returned the guarantee is simply forfeited.

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Article 52

eign documents which may bear unfamiliar signatures, seals or stamps can lead to complicated and time-consuming procedures, which may involve a chain of verificatory seals or signatures of individuals or bodies each of whom is familiar with the immediately preceding seal or signature and end with certification by the diplomatic or consular agents of the State in which the document is to be produced. In this way the genuineness of the document can be proven,1 but the consequence for a free movement regime would most likely be an undermining of its effectiveness. The rationalization or abolition of such legalisation or equivalent requirements has been the 2 subject of different international and regional initiatives, most notably the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.2 This instrument which currently has 91 States party worldwide,3 including all the EU Member States bar Denmark, reduces the formalities of legalisation to the delivery of a prescribed certificate, known as an apostille, by the authorities of the State where the document originates. An attempt by the EC Member States to dispense with all such formalities resulted in the 1987 Brussels Convention Abolishing the Legalisation of Documents in the Member States of the European Communities4 but this instrument has only been ratified or acceded to by seven Member States.5 In the aftermath of the Treaty of Amsterdam there is every likelihood that the abolition of legalisation may become the subject of a Community initiative,6 but as regards the free movement of civil and commercial as well as family law judgments the matter has already been resolved. II. Legislative History A prohibition of legalisation for judgments benefitting from the free movement regime as 3 well as associated documents has been a permanent feature of the Brussels model. Given the controls which could otherwise exist the rationale behind such a provision is clear. The only evolution in the provision has been with regard to the documents which have profited from the exemption, though this development relates not to the scope of the legalisation provi-

1 2 3 4 5

6

Legalisation of course does not reflect in any way on the substance of the document under consideration. http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=41. http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=41. RCDIP 81 (1992), 549. Denmark, Italy, France, Belgium, Ireland, Lithuania and Cyprus, see: http://www.diplomatie.be/fr/pdf/ treaties/viii1.pdf. Where this instrument operates it takes precedence over the 1961 Hague Convention, see Art. 8 of the latter. The communitarization of the 1987 Brussels Convention has been called for by the Conférence des Notariats de l’Union Européenne: Prise de position sur la communication de la Commission européenne “Espace de liberté, de sécurité et de justice: bilan du programme de Tampere et futures orientations” (COM (2004) 401 final), 6 September 2004, www.cnue.be, whilst in the Annexe au Livre Vert sur les Successions et Testaments COM (2005) 65 final, 1 March 2005, http://europa.eu.int/comm/justice_home /ejn/homepage/homepage_ec_succes_an_fr.pdf the Commission notes that the creation of a European judicial area obliges the abolition of formalities such as legalisation between Member States, at p. 37. See also the recommendation in the Communication from the Commission to the European Parliament and the Council, COM (2009) 262 final, 10 June 2009, para. 3. 4. 1.

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sion, but to variations in the profile of documents required to accompany a judgment to be recognised or enforced.7 III. Scope of Application 4 In contrast to other instruments, notably the 1996 Hague Protection of Children Conven-

tion,8 the legalisation exemption in Art. 52 is strictly limited. The documents which benefit when relied upon in the Member State of recognition include: copies of Section 1 (standard track) judgments which satisfy the conditions for authenticity under the law of the Member State of origin,9 along with their accompanying certificates;10 in the case of judgments given in default, the original or certified true copy of the document establishing that the defaulting party was served with the document instituting the proceedings or an equivalent document,11 or, a document indicating the defendant has accepted the judgment unequivocally;12 in the absence of the supporting documents identified above13 any equivalent documents which may be requested14 along with any certified translations which are required;15 copies of Section 4 (fast track) judgments which satisfy the conditions for authenticity under the law of the Member State of origin,16 along with their accompanying certificates17 and, if necessary, translations of specific provisions in the latter;18 and finally documents appointing representatives ad litem to bring enforcement proceedings on behalf of an applicant.19 5 As shown above the scope of Art. 52 has evolved from the 1968 Brussels Convention variant,

indeed this is understandable in the most recent instrument taking on a different dimension in introducing a twin track approach to the recognition of judgments and a unified approach to Community child abduction cases alongside the 1980 Hague Convention. 6 It is in the latter context that there is a development of relevance to the issue of legalisation

for under Art. 11 (6) of the Regulation if a non-return order is made in intra-Member State 7

8 9 10 11 12 13 14 15 16 17 18

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For example Art. 47 (1) of the 1968 Brussels Convention and Art. 34 of the 1998 Brussels II Convention both required documentary evidence that the judgment was enforceable under the law of the Member State of origin, whilst Art. 47 (2) of the former instrument required documentary evidence where an applicant was in receipt of legal aid in the State or origin. In Brussels IIbis such matters are dealt with in the certificates which should ordinarily accompany the judgment to be enforced, see Art. 39. Art. 43. Art. 37 (1). Art. 39. Art. 37 (2) (a). Art. 37 (2) (b). Art. 37 (1) (b) or (2). Art. 38 (1). Art. 38 (2). Art. 45 (1). See Art. 41 (1) for access orders and Art. 42 (1) for return orders. Art. 45 (2) provides that the Art. 41 (1) certificate shall be accompanied by a translation of point 12 relating to the arrangements for exercising right of access, whilst the Art. 42 (1) certificate shall be accompanied by a translation of its point 14 relating to the arrangements for implementing the measures taken to ensure the child’s return. Art. 52, see moreover Art. 30 (2).

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child abduction proceedings pursuant to Art. 13 of the Hague Convention then that order and other relevant documents, including a transcript of the hearings, are to be transmitted to the court with jurisdiction or the central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention. There is no mention of these documents in Art. 52. The possibility that this was because the drafters did not wish to interfere with the integrity of an independent international instrument is weakened since this is precisely what the Regulation has done in respect of Community child abduction cases.20 Of course since the transmission of the judgment and other documents is to be made directly between authorities in Member States there should be little reason to question authenticity; it must be hoped therefore that formal requirements are not allowed to cause delay at a juncture where speed is of the essence. Where the exemption operates it is total, with the words ‘or other similar formality’ showing 7 that it extends even to the simplified apostille mechanism of the 1961 Hague Convention. The acceptance of the Art. 52 documents without any formal certification procedure will bring increased efficiency but it cannot be overlooked that this relaxation in procedural rules does not address or remove the underlying ill which legalisation seeks to avoid, for the situation may still arise, whether through forgery or other material fault, that the document under consideration is not in fact authentic. The 1987 Brussels Convention, which on a general basis exempts documents to which it 8 applies from all forms of legalisation or equivalent formalities, exceptionally allows for requests for information to be made in circumstances where the authorities of the State in whose territory a document is produced have serious doubts as to the authenticity.21 As in the Brussels I Regulation there is no equivalent power in Brussels IIbis, but the provision for central authorities under the latter instrument at least offers the practical mechanism, if not the authority, for securing a verification equivalent to that in the 1987 Convention. The Brussels judgments instruments do, though, offer certain possibilities for intercepting 9 or responding to documentation which is not authentic. Firstly where a declaration of enforceability or registration is sought,22 a procedure which in the first instance is not contradictory,23 or enforcement is sought under the fast track,24 the applicant has the onus of showing that the judgment satisfies the conditions necessary to establish its authenticity under the law of the Member State of origin. Alternatively under the standard track if an unauthentic judgment is not identified at this stage it would subsequently be open to the party challenging the judgment to rely on the public policy exception,25 or, if the issue related to documentation concerning service where a judgment was issued in default, Art. 27 (2) could be invoked. Of course under the fast track, in the absence of any grounds of nonrecognition, there is no specific mechanism for raising such a challenge with regard to the judgment or the essential accompanying certificate.26 In such situations were authenticity at 20 21 22 23 24 25 26

See Art. 11 and generally McEleavy, (2005) 1 JPRIL 5–34. Art. 4 (1). Art. 37 (1) (a). Art. 31 (1). Art. 45 (1) (a). Art. 23 (1) (a). Art. 41 (1) for access orders and Art. 42 (1) for return orders.

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issue the only option for the objecting party would be to raise the matter in the context of enforcement proceedings which are regulated by national law.27

Chapter IV: Cooperation between Central Authorities in Matters of Parental Responsibility Article 53: Designation Each Member State shall designate one or more central authorities to assist with the application of this Regulation and shall specify the geographical or functional jurisdiction of each. Where a Member State has designated more than one central authority, communications shall normally be sent direct to the relevant central authority with jurisdiction. Where a communication is sent to a central authority without jurisdiction, the latter shall be responsible for forwarding it to the central authority with jurisdiction and informing the sender accordingly.

I. General purpose and legislative history of Chapter IV 1 Chapter IV of the Regulation, concerning the cooperation between central authorities in

matters of parental responsibility, is an innovation regarding the Regulation no. 1347/2000; this innovation is justified by the inclusion of matters of parental responsibility. This Chapter has been included in the Proposal of the Commission of 2002.1 The European Parliament has proposed some amendments which have not been accepted.2 The text of the Commission’s Proposal has undergone some modifications in the subsequent legislative process. 2 The Proposal of the Commission might be understood as embracing the cooperation of

central authorities also in matrimonial matters.3 The title of the Chapter IV of the Regulation, however, suggests that the Community legislator opted for restricting it to parental responsibility. The Proposal for a Revised Regulation makes this distinction explicit in the wording of the provision (Art. 60 of the Proposal). 3 The cooperation between central authorities is aimed to improve the application of the

Regulation, namely by assuring that jurisdiction in matters of parental responsibility is assigned to the most convenient court and that decisions taken by Member States’ courts 27 1 2

3

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Art. 47. COM(2002) 222 final/2. European Parliament legislative resolution on the proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/ 2001 in matters relating to maintenance (COM(2002) 222 – C5–0234/2002–2002/0110(CNS)) – P5_TA (2002)0543). See Explanatory Memorandum of the Proposal for a Council Regulation (COM(2002) 222 final/2) p. 18– 19.

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are effective in other Member States, and to promote the amicable resolution of family disputes.4 These aims are instrumental in relation to the more general purpose of the Regulation in matters of paternal responsibility which is the promotion of the best interest of the child.5 II. Designation of central authorities The designation of central authorities takes place in the context of the introduction of 4 Chapter IV of the Regulation. It has been referred that this introduction is justified by the inclusion of matters of parental responsibility. In these matters, there is a need of communication between administrative authorities and/or courts of different Member States, as well as a need of assistance by administrative authorities, that recommend the creation of central authorities.6 This system of central authorities had been already provided by the Hague Convention on International Child Abduction (1980) and by the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996). Member States must designate at least one central authority. The Proposal of the Commis- 5 sion (Art. 55) only allowed the designation of more than one central authority by Member States where two or more systems of law or sets of rules concerning matters governed by the Regulation apply in different territorial units. In this case the Member State might designate one authority for each territorial unit. This was close to the provision on designation of central authorities contained in the Hague Convention on International Child Abduction (1980, Art. 6). Art. 53 of the Regulation, however, allows the designation by any Member State of more than one central authority, requiring only the specification of the geographical or functional jurisdiction of each authority. The case of Member States with plurality of systems applicable in different territorial units, such as the United Kingdom, is certainly the main field of application of this provision. The Practice Guide for the application of the new Brussels II Regulation stresses that, ideally, 6 these authorities should coincide with the existing authorities entrusted with the application of the Hague Convention on International Child Abduction.7 “This could create synergies and allow the authorities to benefit from the experiences acquired by the authorities in child abduction cases”.8 Furthermore, the system of cooperation of central authorities organized by this Hague Convention (Arts. 6–21) is complementary to the cooperation established by the Regulation and, therefore, the designation of different central authorities under each one of these instruments would cause unnecessary problems of coordination and duplication of tasks. The Practice Guide also stated that central authorities had to be given sufficient financial and 7 human resources to be able to fulfil their duties, that their personnel should have received adequate training before the entry into force of the Regulation, and that the use of modern 4 5 6 7 8

Recital no. 25. Recitals nos. 12, 13 and 17. See also Rauscher, in: Rauscher Art. 53 note 1. In http://ec.europa.eu/justice/doc_centre/civil/doc/parental_resp_ec_vdm_en.pdf, 43. In http://ec.europa.eu/justice/doc_centre/civil/doc/parental_resp_ec_vdm_en.pdf, 43.

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technologies should be encouraged.9 The Proposal for a Revised Regulation introduces a new provision with this content (Art. 61). 8 According to Art. 67 of the Regulation the Member States shall communicate to the Com-

mission within three months following the entry into force of the Regulation the names, addresses and means of communication for the central authorities designated pursuant to Art. 53 and the languages accepted for communications to central authorities pursuant to Art. 57(2). The Member States shall also communicate to the Commission any changes to this information. The Commission shall make this information publicly available. This information can be found on the Internet site “European Judicial Atlas in Civil Matters”.10 Article 54: General functions The central authorities shall communicate information on national laws and procedures and take measures to improve the application of this Regulation and strengthening their cooperation. For this purpose the European Judicial Network in civil and commercial matters created by Decision No. 2001/470/EC shall be used.

1 In the context of the Regulation the cooperation between central authorities means the

communication of information and the taking of measures to assist the holders of parental responsibility in the exercise of their rights and the courts in the application of the Regulation. Central authorities shall cooperate both in general matter and in specific cases. 2 In general matter, the central authorities shall communicate information on national laws

and procedures and take measures to improve the application of this Regulation and strengthening their cooperation (Art. 54). To this end central authorities shall participate in the European Judicial Network in civil and commercial matters created by Council Decision No. 2001/470/EC of 28 May 2001,1 amended by Decision No. 568/2009/EC of the European Parliament and of the Council of 18 June 2009.2 As members of the European Judicial Network the central authorities shall establish, in collaboration with the “contact points” designated by the Member States, an information system for the members of the Network, as well as an information system accessible to the public (Art. 3 (1) and (2) of the Decision), and shall meet periodically to discuss matters of common interest (Art. 4 (2) of the Decision and Art. 58 of the Regulation), both according to the rules laid down in the Decision. Furthermore, the central authorities may use the “contact points” for the accomplishment of their tasks (Art. 5 (1) of the Decision) and may develop best practices on family mediation or facilitate the networking of organizations working in this area.3 3 The specific cases of cooperation are listed in Art. 55. 9 10

1 2 3

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In http://ec.europa.eu/justice/doc_centre/civil/doc/parental_resp_ec_vdm_en.pdf, 43. In https://e-justice.europa.eu/content_matrimonial_matters_and_matters_of_parental_responsibility377-en.do. OJ 2001 L 174/25. OJ 2009 L 168/35. Cf. Explanatory Memorandum, p. 18–19.

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Article 55: Cooperation on cases specific to parental responsibility The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to: (a) collect and exchange information: (i) on the situation of the child; (ii) on any procedures under way; or (iii) on decisions taken concerning the child; (b) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child; (c) facilitate communications between courts, in particular for the application of Article 11(6) and (7) and Article 15; (d) provide such information and assistance as is needed by courts to apply Article 56; and (e) facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.

Art. 55 states the specific cases of cooperation between central authorities. It follows the 1 model of Arts. 31 and 32 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996). For the meaning of “cooperation between central authorities” see Art. 54 note 1 supra. The specific cases of cooperation include, in the first place, collecting and exchanging in- 2 formation on the situation of the child, as well as on any procedures or decisions concerning her or him (a). A second duty of the central authorities is providing information and assistance to holders of 3 parental responsibility seeking the recognition and enforcement of decisions on their territory (b). For the “working method” in this respect see Art. 57. Third, the central authorities shall facilitate court-to-court communications, in particular 4 where the court of the State in which the child has been wrongfully removed or retained issues an order of non-return (Art. 11 (6) and (7)) and where a case is transferred from one court to another (Art. 15) (c)). In this last case, the central authorities shall also assist the national court in identifying the court that has jurisdiction in the other Member State and by providing non-official translations of documents if necessary. In this context, the central authorities will serve as a link between the national courts and the central authorities of other Member States. This could be particularly useful where the judges cannot contact directly because they do not speak and/or understand a common language. For instance, the ECJ held that the protection of the best interest of the child may require 5 that the national court which has taken provisional or protective measures under Art. 20, or which has declared of its own motion that it does not have jurisdiction, inform the court of

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another Member State having jurisdiction in matter of parental responsibility. This information may be provided directly or through the central authority.1 6 Another task of the central authorities is providing information and assistance needed by

courts in case of placement of a child in another Member State (see Art. 56) (d). 7 Finally, the central authorities shall facilitate agreements between holders of parental re-

sponsibility through mediation or other means of alternative dispute resolution (e). 8 According to the Practice Guide it is generally considered that mediation can play an im-

portant role in child abduction cases to ensure that the child can continue to see the nonabducting parent after the abduction and to see the abducting parent after the child has returned to the Member State of origin.2 Nonetheless, it is important that the mediation process is not used to unduly delay the return of the child. 9 This recourse to alternative dispute resolution methods (ADRs) is the expression in a

particular case of a general policy of the Community institutions, which has led to a Green Paper on alternative dispute resolution in civil and commercial law presented by the European Commission in 20023 and to a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters (2008).4 This Directive defines “mediation” as “a structured process, however named or referred to, where two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State” (Art. 3 (a)). This Directive, however, is only applicable to rights and obligations which are at the parties’ disposal under the relevant applicable law (Art. 1 (2)). Therefore, it does not apply, in principle, to matters of parental responsibility. 10 The task of facilitating agreements through mediation does not mean that the central au-

thority is under a duty to supply a mediator from its own personnel.5 The holders of parental responsibility may have to resort to the services of a private mediator. 11 In the aforementioned cases of specific cooperation, the action of the central authorities

depends on the request of the central authority of another Member State or of the holder of the parental responsibility and may be carried out either directly or through other agencies. 12 The Proposal for a Revised Regulation changes the wording of the provision, namely by

adding two new subheadings to paragraph 1 (Art. 63(1)(a) and (g)), 3 new paragraphs (Art. 63 (2) to (4)) and a new provision on “Cooperation on collecting and exchanging information” (Art. 64). The new wording allows any authorities of a Member State, namely courts and child welfare authorities, to request the assistance of central authorities (main heading of Art. 63(1)).6 The reference to the law of Member States in matters of personal 1 2 3 4 5

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Cf. A. (Case C-523/07) (2009) ECR I-2805. Practice Guide, 43. COM(2002) 196 final. Directive 2008/52/EC, OJ 2008 L 136/3. See also Rauscher, in: Rauscher Art. 55 note 2.

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data protection is supressed, since now these matters are dealt with by the EU Regulation 2016/679, of the European Parliament and of the Council of 27 April 2016.7 Art. 63(1)(a) makes clear that on the request of the central authority of another Member State the central authorities should provide assistance in discovering the whereabouts of a child apparently present within the territory of the respective Member State. Art. 63(1)(g) lays down a time limit of 6 weeks for the completion, by the central authority of a Member State, of the file prepared in view of court proceedings for the return of children under the 1980 Hague Convention, save where exceptional circumstances make this impossible. Art. 63(2) limits the requests made by holders of parental responsibility to information and assistance regarding the recognition and enforcement of decisions and to facilitation of agreements between holders of parental responsibility. Art. 63(3) specifies that the central authorities shall, within their Member State, transmit the information referred to in Arts. 63 and 64 to the competent authorities, including the authorities competent for service of documents and for enforcement of a decision. Art. 63(4) provides that notification of the data subject of the transmission of all or part of the information collected shall take place in accordance with the national law of the requested Member State and that such notification may be deferred until the request has been carried out where it involves a risk for the effective carrying out of the request. The proposed Article 64 clarifies and supplements the provision, by providing, in the first 13 place, that any authority of a Member State with which the child has a substantial connection may, based upon supporting reasons, request the central authority of the Member State where the child is habitually resident and present, directly or through authorities or other bodies, a report on the matters presently referred to in Art. 55(a) of the Regulation,8 as well as request the competent authority of its Member State to consider the need to take measures for the protection of the person or property of the child (1). The same authorities may request any authority of another Member State the communication of information relevant to the protection of the child for the purpose of taking a decision on parental responsibility (2)9 or assistance in the implementation of such decisions (3).10 These requests, and the accompanying documents, shall be translated into the official language of the requested Member State or any other language that it has expressly accepted (4). Furthermore, the authorities of a Member State where the child is not habitually resident shall, upon request of a person residing in that Member State who is seeking to obtain or to maintain access to the child, or upon request of a central authority of another Member State, gather information or evidence, and may make a finding, on the suitability of that person to exercise access and on 6 7 8

9

10

See Explanatory Memorandum of the Proposal, 16. OJ 2016 L 119/1. According to Recital No. 45, the request for a report should contain in particular a description of the proceedings for which the information is needed and the factual situation that gave rise to those proceedings. According to Recital No. 46, this may include information on proceedings and decisions concerning a parent or siblings of the child, or on the capacity of a parent to care for a child or to have access to the child. According to Recital No. 49, this assistance should apply, for instance, to decisions granting supervised access to be exercised in a Member State other than the Member State where the access was ordered or involving any other accompanying measures of the competent authorities in the Member State where the decision is to be implemented.

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the conditions under which access should be exercised (5). Those findings can then be used in the proceedings in the Member State having jurisdiction on parental responsibility matters under the Regulation.11 As time is essential in parental responsibility matters, there is a time limit of two months for the transmission of the information requested under Art. 64, provided, except where exceptional circumstances make this impossible, by paragraph 6.12 Article 56: Placement of a child in another Member State 1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement. 2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement. 3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State. 4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

1 Art. 56 goes beyond the cooperation between central authorities in a double direction. On

the one hand, to the extent that it institutes a procedure that shall be followed by the court seized with a matter of parental responsibility under the jurisdiction provisions of the Regulation whenever the child is to be placed in another Member State. The inobservance of this procedure amounts to a ground of non-recognition of the judgment given (Art. 23 (g)). On the other, because it provides for the intervention of authorities of the requested State that are not necessarily central authorities. The procedure to be followed depends on whether or not public authority intervention in the Member State where the child is to be placed is required for domestic cases of child placement by the law of this State. 2 Where the public authority intervention is required the court seized shall consult the central

authority or other authority having jurisdiction in the State where the child is to be placed and only may give a judgment on placement if the competent authority of the requested State has consented to the placement (Art. 56 (1) and (2)). The procedures for consultation or consent are then governed by the national law of the requested State (Art. 56 (3)). Therefore, the Member States have a margin of discretion as regards the consent procedure. However, the requested State must ensure that its national legislation does not undermine the objectives of the Regulation or render it ineffective. In this light, Member States are required to establish clear rules and procedures for the purposes of the consent referred to in Art. 56, in order to ensure legal certainty and expedition. The procedures must, inter alia, 11 12

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Cf. Recital No. 47. See also Recital No. 48 and Explanatory Memorandum of the Proposal, 16.

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enable the court which contemplates the placement easily to identify the competent authority and the competent authority to grant or refuse its consent promptly.1 Bearing in mind that it is often difficult for the court seized to determine the competent foreign authority, the resort to the central authority is normally the most practical solution.2 The central authorities shall ensure that the courts of the requesting Member State have precise, clear information in order to apply Art.3 The authority competent for the consent to a placement order made by a court of another 3 Member State must be an authority governed by public law. However, account must be taken of the fact that the Member States have different conceptions of what is or is not within the scope of public law. In any event, a consent emanating from an institution which admits children in return for payment cannot, by itself, constitute the consent of a competent authority within the meaning of Art. 56(2). In effect, an independent assessment of whether the proposed placement is appropriate constitutes an essential measure for the protection of the child, in particular if that placement involves deprivation of liberty, that an institution which profits from the placement is not in a position to make.4 Situations where a placement of a child in another Member State has been based upon an 4 apparent consent from the competent authority must be distinguished from those in which the consultation between the central authorities or the consent are completely lacking. Where, after the placement, the information concerning the consent procedure raises doubts as to whether the requirements of Art. 56 have been fully complied with, the national rules of procedure should allow the correction a posteriori of the situation by that court in order to ensure that the consent was validly granted. Differently, if the placement was made although consultation between the central authorities concerned or the consent of a competent authority of the requested Member State are completely lacking, the procedure for the obtaining of consent should be recommenced and the court of the requesting Member State should make a fresh placement order after it has determined that the consent has been validly obtained.5 A judgment made by a court of a Member State ordering the placement of a child in 5 institutional care in another Member State is entitled to recognition in the latter State, unless and until an order of non-recognition has been made in that other Member State.6 The consent procedure provided for in Art. 56(2) does not replace the declaration of enforceability of the placement judgment. That is because the objectives of those two procedures are different. Whereas the purpose of obtaining consent under Art. 56(2) is to remove obstacles which might stand in the way of a cross-border placement, the function of a declaration of enforceability is to permit enforcement of an order of placement in secure institutional care. Furthermore, Art. 56 does not require the intervention of a court; the competent authority may be an administrative body. Therefore, a judgment which orders the compulsory place1 2 3 4

5 6

Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, paras. 77–82. See also Rauscher, in: Rauscher Art. 56 note 1. Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, para. 83. Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, paras. 84–88 and 95. Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, paras. 89–93. Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, para. 105.

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ment of a child in a secure care institution situated in another Member State must, before its enforcement in the requested Member State, be declared to be enforceable in that Member State. Nevertheless, in order not to deprive the Regulation of its effectiveness, the decision of the court of the requested Member State on the application for a declaration of enforceability must be made with particular expedition and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect.7 6 Where a consent to placement under Art. 56(2) has been given for a specified period of time,

that consent does not apply to orders which are intended to extend the duration of the placement. In such circumstances, an application for a new consent must be made. A judgment on placement made in a Member State, declared to be enforceable in another Member State, can be enforced in that other Member State only for the period stated in the judgment on placement.8 7 Where the court seized decides to place the child in a foster family in a State that does not

require public authority intervention, it shall so inform the central authority or other authority having jurisdiction in the State of placement (Art. 56 (4)). The consent of this authority is not required. 8 According to Art. 55 (d) the central authorities shall provide the information and assistance

needed for the application of Art. 56. 9 The Proposal for a Revised Regulation amends this provision in Art. 65, on one hand to

improve formal aspects, on the other hand to change or supplement the applicable regime. The main change consists in the generalization of the requirement of consent of the competent authority of the Member State of placement for every placement of a child in institutional care or with a foster family in another Member State ((1) and (3)). The request for consent shall always be channelled through the central authorities (1); the request shall include a report on the child together with the reasons of the proposed placement or provision of care (1); translation of the request and of the accompanying documents into the official language or one of the official languages of the requested Member State or any other language that the requested Member State has expressly accepted is required (2); and the essentiality of time in these matters is again taken into account by providing that, except where exceptional circumstances make this impossible, the transmission of the decision granting or refusing consent to the requesting Central Authority is subject to a time limit of two months (4)9. However, it should be remarked that the inobservance of this procedure ceases to be a ground of non-recognition of the judgment given by the court seized with a matter of parental responsibility (cf. Art. 38(1)). The reason for abolishing this ground of non-recognition is not clear. 10 Recital No. 51 of the Proposal points out that any “long-term placement of a child abroad

should be in accordance with Article 24(3) of the Charter of Fundamental Rights of the EU (right to maintain personal contact with parents) and with the provisions of the United 7

8 9

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Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, paras.105, 120, and 133. Cf. Health Service Executive v. S.C. and A.C (Case C-92/12 PPU), ECLI:EU:C:2012:255, para. 146. See also Recital No. 50 and Explanatory Memorandum of the Proposal, 14.

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Nations Convention on the Rights of the Child, notably Articles 8, 9 and 20. In particular, when considering solutions, due regard should be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”. Article 57: Working method 1. Any holder of parental responsibility may submit, to the central authority of the Member State of his or her habitual residence or to the central authority of the Member State where the child is habitually resident or present, a request for assistance as mentioned in Article 55. In general, the request shall include all available information of relevance to its enforcement. Where the request for assistance concerns the recognition or enforcement of a judgment on parental responsibility that falls within the scope of this Regulation, the holder of parental responsibility shall attach the relevant certificates provided for in Articles 39, 41(1) or 42(1). 2. Member States shall communicate to the Commission the official language or languages of the Community institutions other than their own in which communications to the central authorities can be accepted. 3. The assistance provided by the central authorities pursuant to Article 55 shall be free of charge. 4. Each central authority shall bear its own costs.

Bibliography Coester, Kooperation statt Konfrontation: Die Rückgabe entführter Kinder nach der Brüssel IIaVerordnung, in: FS für Peter Schlosser (2005), p. 135.

The holders of parental responsibility may submit, to the central authority of the Member 1 State of his or her habitual residence or to the central authority of the Member State where the child is habitually resident or present, a request for assistance ((1) first sentence). In this case, the holders of parental responsibility are under a duty of cooperation with the central authority: the request of assistance shall include all available information of relevance to its enforcement ((1) second sentence). This information includes particularly prior judgments on parental responsibility or protection measures taken by administrative authorities.1 The request for assistance submitted to the central authority of the Member State of the 2 habitual residence of the holders of parental responsibility may concern the “adequate arrangements” referred to in Art. 11 (4) to avoid a hindrance to the return of the children according to Art. 13 (1) (b) of Hague Convention on International Child Abduction (1980) (grave risk that her or his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation).2 Where the request for assistance concerns the recognition or enforcement of a judgment on 3 1 2

Cf. Rauscher, in: Rauscher Art. 57 note 1. See also Coester, in: FS für Peter Schlosser (2005), p. 135, 139.

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parental responsibility that falls within the scope of the Regulation, the holder of parental responsibility shall attach the relevant certificates provided for in Arts. 39, 41 (1) or 42 (1) (§ 1 third sentence). 4 The ability to work in other languages (2) and the provision of services free of charge to the

applicant and other interested parties (3) and to other central authorities (4) are very important considerations for facilitating access to the central authorities. In this connection, a reference shall be made to the Council Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.3 5 The central authorities are only under a duty to assist where the request is made in the

language of the requested Member State or in the official language or languages of the Community institutions communicated by this State to the Commission. According to Art. 67 (b), the Member States shall communicate to the Commission within three months following the entry into force of the Regulation the languages accepted for communications to central authorities pursuant to Article 57 (2). 6 Apparently, the central authorities are not entrusted with the functions of making recom-

mendations to the courts or of taking measures for returning the child,4 namely instituting proceedings to this end, since the provisions assigning these functions to them, contained in the Proposal of the Commission (Art. 57), have been deleted. Nevertheless, the central authority may perform these functions in Member States parties to the Hague Convention on International Child Abduction (1980) where it is also the central authority designated under this Convention (Art. 10 of this Convention). Furthermore, the Regulation does not exclude that domestic law of Member States assigns such functions to the central authorities. 7 Each central authority shall bear the costs of its activity. This applies either towards the

holder of parental responsibility or other interested parties (3) or in the relationships between central authorities (4).5 8 Art. 66 of the Proposal for a Revised Regulation improves the provision’s wording, clarifying

that the request of assistance may concern the recognition and enforcement of authentic instruments and contemplating the possibility of the applicant being not only a holder of parental responsibility but also an authority. Article 58: Meetings 1. In order to facilitate the application of this Regulation, central authorities shall meet regularly. 2. These meetings shall be convened in compliance with Decision No. 2001/470/EC establishing a European Judicial Network in civil and commercial matters.

3 4 5

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OJ 2003 L 032/15. See also Rauscher, in: Rauscher Art. 55 note 3. Cf. Rauscher, in: Rauscher Art. 57 note 4.

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Chapter V: Relations with Other Instruments

This provision is a particularization of the general functions of central authorities stated on 1 Art. 54. As aforementioned,1 the central authorities, as members of the European Judicial Network, shall meet periodically to discuss matters of common interest (Art. 4/2 of the Decision No. 2001/470/EC).

Chapter V: Relations with Other Instruments Bibliography Marianne Andrae, Zur Abgrenzung des räumlichen Anwendungsbereichs von EheVO, MSA, KSÜ und autonomem IZPR/IPR, in: Praxis des internationalen Privat- und Verfahrenrechts (IPRax) 2006, p. 82 Christoph Benicke, Haager Kinderschutzübereinkommen, in: Praxis des internationalen Privat- und Verfahrenrechts (IPRax) 2013, p. 44, 51 Dagmar Coester-Waltjen, “Brüssel II” und das “Haager Kindesentführungsübereinkommen”, in: Thomas Rauscher, Heinz-Peter Mansel (eds.), FS für Werner Lorenz zum 80. Geburtstag (2001), p. 305 Cristina Gonzales Beilfuss, EC Legislation in Matters of Parental Responsibility and Third States, in: Nuyts, Arnaud/Watté, Nadine (eds.): International Civil Litigation in Europe and Relations with Third States (2005), p. 493 Anna-Christina Gördes, Internationale Zuständigkeit, Anerkennung und Vollstreckung von Entscheidungen über die elterliche Verantwortung. Die VO (EG) Nr. 1347/2000, ihre geplanten Änderungen und das Verhältnis beider zum Minderjährigenschutz- und Kinderschutzabkommen (2003), p. 129, 233

Burkhard Hess, Back to the Past: BREXIT und das Europäische internationale Privat- und Verfahrensrecht, in: Praxis des internationalen Privat- und Verfahrenrechts (IPRax) (2016), p. 409 Dieter Martiny, Kindesentziehung – “Brüssel II” und die Staatsverträge, in: ERA-Forum I/2003, p. 97, 101 Peter McEleavy, The 1996 Hague Convention and the European Union: Connection and Disconnection, in: A Commitment to Private International Law. Essays in honour of Hans van Loon (ed. by The Permanent Bureau of the Hague Conference on Private International Law, 2013), p. 371 Rolf Wagner/Ulrike Janzen, Die Anwendung des Haager Kinderschutzübereinkommens in Deutschland, in: Familie, Partnerschaft und Recht (2011), p. 110 Andrea Schulz, Die EU und die Haager Konferenz für Internationales Privatrecht, in: Jan von Hein/ Giesela Rühl (eds.), Kohärenz im Internationalen Privat- und Verfahrensrecht der Europäischen Union (2016), p. 110.

Introductory remarks I. Relations with other provisions Chapter V concerns the relationship between this Regulation and provisions in public 1 international law instruments originating from outside the European Union or, if originating within the EU, before the EU was jurisdictionally competent. EU means, as always in this context, the Member States with the exception of Denmark and, in the future, following the 1

See Art. 54 note 2.

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transitional period of Article 50 TEU, i.e. the coming into force of the “Brexit” – the United Kingdom.2 The chapter does not address relations with other EU documents; in that context, the ordinary rules of lex specialis and lex posterior apply since the former Brussels II Regulation is expressly repealed by Art. 71. Nor does the chapter deal with questions of intertemporal law, as treated in Art. 64. So, the reference to Art. 64 in Art. 59 (1) is without purpose and might be, as such, misleading, although the same formulation already appeared in Art. 36 (1) Brussels II Regulation, and, probably as a reference to Art. 78, will be maintained in Art. 72 of the Commission Proposal of 30.6.2016 (COM[2016] 411 final). On the whole, chapter V is not a very convincing example of European legislation; for example, the idea underlying Art. 62 is rather incomprehensible and the technique of Art. 63 is unnecessarily complicated. II. Legislative history 2 The chapter replaces Arts. 36–40 Brussels II Regulation, which in turn originated in Arts.

38–42 of Title Vof the draft Convention of 28 May 1998 drawn up on the basis of Art. K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, OJ 1998 C 221/1. In substance, Art. 59 replaces Art. 36 Brussels II Regulation; Arts. 60 and 61 correspond to the former Art. 37; Art. 62 to former Art. 38; Art. 63 to former Art. 40; as regards Art. 39, see note 4. The chapter does not contain any provision corresponding to Art. 43 of the draft convention, which was based on Art. 59 Brussels I Convention. 3 The Commission Proposal of 30.6.2016 (COM[2016] 411 final) for a recast of the Regu-

lation follows, in general, the underlying principles of the present Chapter. Its intention is to introduce, besides some more or less technical adaptations of the Chapter which will become Chapter VIII (Arts. 72–77), new – mostly clarifying – provisions concerning the relationship with the 1980 and 1996 Hague Conventions (Arts. 74, 75 paragraphs [2] and [3], instead of Art. 60 letter [e], which is to be abolished, just like the Nordic option in Art. 59 paragraphs [2] and [3]). III. Exclusive character of the Regulation 4 The general principle underlying this chapter is that of priority of the law of the EU, first

established in the corresponding provisions of the Brussels I Convention (Arts. 55, 56), while the rules contained in Art. 57 of that convention, which gave priority to certain multilateral conventions on particular matters, survived, for a long time, in Art. 71 Regulation 44/2001, but have no counterpart in the present Regulation. Art. 39 Regulation 1347/ 2000, with the possibility offered to Member States to add to, or facilitate, the application of the provisions of Regulation 1347/2000 on a bilateral basis, has been abolished. This means that two or more Member States can no longer establish specific rules to be applied in the relations between such States in addition to the provisions of the Regulation; such former specific rules, if they had been agreed upon (and communicated to the Commission according to Art. 39 [2] [a] Regulation 1347/2000 – which was improbable because of the very short period within which this provision was to be applied), would no longer be applicable, which seems rather exaggerated. Aside the Regulation other conventions relating to matters gov2

458

Hess, IPRax 2016, p. 409, 416.

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erned by the Regulation cannot be applied, even if they would be more favourable as regards the recognition of a foreign decision in a concrete case,3 or if the Regulation is less precise.4 Thus, the new Regulation has, among EU States, in principle exclusive character, with exceptions concerning the Treaties between the Holy See and Portugal, Italy, Spain and Malta, respectively, with regard to which Treaties the Regulation shall apply without prejudice according to Art. 63, concerning the Hague Convention of 1996, Art. 61, and concerning the convention of 6 February 1931 in the relations between Finland and Sweden, Art. 60 (2). On the other hand, Member States are not hindered to establish internal additional provisions, as, for example, Germany did with the Gesetz zum internationalen Familienrecht (Code on International Family Law), 26 January 2005, BGBl. 2005 I, 162, with executory provisions on this Regulation, the Hague Convention of 25 October 1980 and the Luxembourg Convention of 20 May 1980 and now also the Hague Convention of 19 October 1996. IV. Reference to Art. 64 Like the whole Regulation, chapter V applies only to proceedings instituted or acts estab- 5 lished after its date of application according to Art. 72 (2), that is 1 March 2005. This is the direct consequence of Arts. 64, 72 and is independent of whether the reference to Art. 64 within Art. 59 (1) is of any use at all.5

Article 59: Relation with other instruments 1. Subject to the provisions of Articles 60, 63, 64 and paragraph 2 of this Article, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of this Regulation which have been concluded between two or more Member States and relate to matters governed by this Regulation. 2. (a) Finland and Sweden shall have the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply, in whole or in part, in their mutual relations, in place of the rules of this Regulation. Such declarations shall be annexed to this Regulation and published in the Official Journal of the European Union. They may be withdrawn, in whole or in part, at any moment by the said Member States. (b) The principle of non-discrimination on the grounds of nationality between citizens of the Union shall be respected. (c) The rules of jurisdiction in any future agreement to be concluded between the Member States referred to in subparagraph (a) which relate to matters governed by this Regulation shall be in line with those laid down in this Regulation. (d) Judgments handed down in any of the Nordic States which have made the declaration provided for in subparagraph (a) under a forum of jurisdiction corresponding to one of

3 4 5

Spellenberg in: Staudinger, Kommentar zum BGB, IntVerfREhe (2015) Art. 59 note 4. Mankowski Brussels I, Art. 69 note 3. Comp. note 1.

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those laid down in Chapter II of this Regulation, shall be recognised and enforced in the other Member States under the rules laid down in Chapter III of this Regulation. 3. Member States shall send to the Commission: (a) a copy of the agreements and uniform laws implementing these agreements referred to in paragraph 2 (a) and (c); (b) any denunciations of, or amendments to, those agreements or uniform laws.

Declarations by Sweden and Finland pursuant to Article 59 (2) (a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/2000: Declaration by Sweden: Pursuant to Article 59 (2) (a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, Sweden hereby declares that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply in full in relations between Sweden and Finland, in place of the rules of the Regulation. Declaration by Finland: Pursuant to Article 59 (2) (a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, Finland hereby declares that the Convention of 6 February 1931 between Finland, Denmark, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply in full in relations between Finland and Sweden, in place of the rules of the Regulation.

I. Principle of supersession 1 In principle, according to Arts. 59 (1) and 62 (1), Regulation 2201/2003 supersedes all

multilateral and bilateral conventions between Member States relating to matters to which the Regulation applies, in so far as they cover such matters. This means that the Regulation does not only have priority over such conventions, but replaces them, in so far, completely, does not leave open to them any kind of subsidiarity. Paragraph (1) expresses this with regard to conventions existing at the time of entry into force of the Regulation, that is, according to Art. 72 (1), 1 August 2004. Because of the priority of EU law and the legislative history, eventual later bilateral treaties may not be concluded at all, not even if they contain only additional provisions, as this was expressly permitted in former Art. 39 Regulation 1347/2001. As regards earlier treaties ratified by the United Kingdom, after the “Brexit” former conventions will, in principle, revive completely in the relations between the United Kingdom and the EU Member States, especially the Hague conventions mentioned in Arts. 60 and 61.1

1

460

Hess, IPRax 2016, p. 409, 413, 416.

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While Art. 69 Regulation 44/2001 contained a list of (essentially) bilateral conventions 2 concluded between Member States and, in principle, superseded by that Regulation, the present Article, following in this Art. 38 of the draft Convention of 28 May 1998, refrains from such a practice. This avoids the necessity of adapting the provision on the occasion of each new adhesion to the EU; nevertheless, the list in Art. 69 Regulation 44/2001 gavesome illustrations of the former importance of bilateral treaties in this context, as many of them also contain provisions on recognition of divorces in general, and some also of custody decisions, as well as some of them establish direct jurisdiction. As regards Germany, bilateral treaties with Austria (6 June 1959),2 Belgium (30 June 1958), Greece (4 November 1961), Italy (9 March 1936), the Netherlands (30 August 1962), Spain (14 November 1983) and the United Kingdom (14 July 1960)3 can be mentioned, all of them without provisions on direct jurisdiction; the impressive list in Art. 69 Regulation 44/2001 was, in any case, incomplete, and so, in substance only indicative, as the treaties concluded by the United Kingdom, for example with France (18 January 1934), Belgium (2 May 1934), Germany (14 July 1960), Italy (7 February 1960) and the Netherlands (17 November 1967), were missing there. Today, Art. 69 together with Art. 76 paragraph (1) (c) Regulation 1215/2012 is intended to provide for the corresponding informations. As – with the exception of Art. 59 (2) (d) – there is no possibility to examine jurisdiction when deciding on recognition of decisions taken in Member States, Art. 24, an eventual wrong application of provisions on (direct) jurisdiction in such conventions in violation of chapter II of this Regulation would, in principle, be of no consequence; an exception applies as to provisional measures, eventually based on Art. 20.4 So the fact that there is no list is irrelevant. II. Nordic option On the basis of a political agreement of the European Union of December 1997,5 Art. 59 3 paragraph (2) permits an important exception to the principle laid down in paragraph (1). According to the option given to them and supposedly after having complied with paragraph (3), Finland and Sweden have declared, in the form required, that, in their relations between each other, they will apply the Nordic Convention of 6 February 1931 in place of the Regulation; their declarations have been published in annex VI to the Regulation, see the texts above before note 1. This derogation from the principle of supersession is to be interpreted strictly.6 The disadvantage of this exception does not principally concern the relations between Fin- 4 2

3

4

5 6

Comp. Herbert Roth, Zur verbleibenden Bedeutung des deutsch-österreichischen Anerkennungs- und Vollstreckungsvertrags 1959, note on (Austrian) OGH 28 April 2011, IPRax 2013, p. 188. Comp., with regard to all treaties mentioned, Reinhold Geimer/Rolf A. Schütze (eds.), Internationaler Rechtsverkehr in Zivil- und Handelssachen nrs. 610, 620, 630, 640, 650, 663, 701, and, even beyond those treaties, Katharina Boele-Woelki/Cristina González Beilfuss (eds.), Brussels IIbis: Its Impact and Application in the Member States, 2007 passim. ECJ Case C-256/10 Purrucker I, Judgment of 15 July 2010 [2010] ECR I-7353, ECLI:EU:C:2010:437, para. 75, Opinion Sharpston 20 May 2010 ECLI:EU:C:2010:296, para. 179; Bundesgerichtshof 9 February 2011 (XII ZB 182/08) para. 23 et seq. Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 113. ECJ Case C-435/06 C, Judgment of 27 November 2007 [2007] ECR I-10141, ECLI:EU:C:2997:714, para. 60.

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land and Sweden, but lies in the consequence according to paragraph (2) (d), that judgments originating from these two Member States, when presented for recognition in other Member States, will have to be examined as to the conformity of the basis of jurisdiction in the concrete case (the ground of which basis must not, necessarily,7 have been indicated in the judgment) with the provisions of chapter II of the Regulation. In substance, according to an adaptation of the Nordic Convention dating 6 February 2001,8 the differences seem to be of a minor character. This complication of the recognition procedure is a high price to be paid permanently, as even future agreements on uniform laws in line with those laid down in this Regulation are possible, but no provisions going beyond, for example in the context of public law placements of children. So this exception cannot be extended to other instruments like harmonised national legislation in the Nordic countries on the basis of agreements on recognition and enforcement of national decisions on placement of persons, a result clarified in the first preliminary proceedings C-435/06 of the ECJ9 on the basis of a request of the Finnish Korkein Hallinto-oikeus of 13 October 2006. 5 The Commission Proposal (Introductory remarks note 3) correctly abolishes this Nordic

specificity. III. Relations with other provisions of the Regulation 6 In addition to this exception which, of course, prevails upon the general rule, a fact expressly

stated in paragraph (1), the principle is applicable subject to the provisions of Articles 60, 63, 64, a formula equally used in all other languages with the former exception of the German text, where – for more than a dozen years, up to a rectification in OJ 2016 L. 99 p. 34 – it read “unbeschadet der Artikel 60, 61, 62”. As this is a pure clarification following from the principle of lex specialis, this divergence was of no real importance; nevertheless, once again this showed that the formulations of the chapter were not everywhere completely satisfactory.

7 In fact, ‘precedence’ according to Art. 60 (‘prévaut’ in French, ‘Vorrang’ in German) would be

an expression somewhat weaker than ‘supersede’ in Art. 59 (1).10 But in substance priority accorded to this Regulation means that the conventions mentioned in Art. 60 do not apply at all, where the provisions of the Regulation are applicable in a concrete case. In so far both versions coincide.

8 As regards Art. 61, there is no general priority of the Regulation with regard to the Hague

Convention of 19 October 1996. Priority only exists where the conditions of Art. 61 (a) and, eventually, (b) are fulfilled. This is a special rule that, in any event, prevails in relation to Art. 59 (1), as in this case there is no general necessity for the Regulation to supersede in this relationship; so the German version is correct under this aspect, and – if there were a need for a proviso in Art. 59 (1) at all – Art. 61 should have been mentioned.

9 Art. 62 (1) describes the limits of the superseding effect according to Art. 59 (1); so there is 7 8 9 10

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But should, nevertheless, be mentioned for the sake of clarity, comp. the Purrucker case, fn. 4. Spellenberg in: Staudinger, Kommentar zum BGB, IntVerfREhe (2015) Art. 59, note 10. ECJ Case C-435/06 C [2007] ECR I-10141 (fn. 6) para. 66. Comp. Gonzales Beilfuss, p. 501 et seq.

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Chapter V: Relations with Other Instruments

no real use of mentioning this Art. in Art. 59 (1). Art. 62 (2) is somewhat incomprehensible and, in any case, covered by the reference to Art. 60 in Art. 59 (1). Art. 63 clearly prevails upon Art. 59 (1) and should also have been mentioned in the German 10 version, while the reference to Art. 64 as an intertemporal rule is of no use in this context.11 On the whole, the reference, if at all, might have been subject to the other provisions of this chapter, which is self evident, but it is, in substance, maintained by Commission Proposal Art. 72 paragraph (1). Article 60: Relations with certain multilateral conventions In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation: (a) the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors; (b) the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages; (c) the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations; (d) the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children; and (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. I. II. III.

Introductory remark . . . . . . . . . . . . . . . . . . . . . . . . 1 Protection of minors . . . . . . . . . . . . . . . . . . . . . . . 2 Decisions on the validity of marriages . . . 3

IV. V. VI.

Divorces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Custody decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Child abduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. Introductory remark Among Member States of the EU, the Regulation takes precedence over five multilateral 1 conventions, specifically listed in this Article, in so far as they deal with matters identical to those governed by the Regulation. The conventions are not affected, as far as they concern other matters, Art. 62 (1), i.e. beyond the scope of application of the Regulation. The conventions mentioned under letters (b) and (c) guarantee the recognition of divorces and other decisions with regard to the existence of a marriage, those under letters (a) and (d) concern the recognition of decisions on parental responsibility. The convention under letter (e) deals with the specific problem of the necessity to return a child promptly after its wrongful removal. All these conventions contain provisions on their relations with other instruments; as the idea of the Regulation is to institute more favourable solutions in relations between Member States, its preceding character is, in substance, in conformity with those provisions, especially Art. 13 of the convention under letter (b), Art. 18 of that under letter (c), Arts. 19, 20 (2) of that under letter (d) and Art. 34 (2) of that under letter (e). Art. 18 (2) of the protection of minors convention (letter a), which declares the convention to be without 11

See Introductory remarks to this chapter, notes 1, 3.

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prejudice to former conventions, is no real obstacle, as nowadays it is to be interpreted taking into account Arts. 51, 52 of the new protection of children convention of 1996 (Art. 61). II. Protection of minors 2 The Hague Convention of 5 October 1961 on the protection of minors (letter a)1 has been

ratified by eleven Member States of the EU (namely Austria, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal and Spain) and, on the other hand, for Switzerland, Turkey and Macao. In the future it will become less and less important because of the convention on the protection of children of 1996.2 The matters governed both by the Regulation and the convention of 1961 concern Arts. 1, 4, 6, 8, 9, 15 of the 1961 convention on jurisdiction and its Art. 7 on recognition with regard to parental responsibility.3 Since the coming into force of the Regulation on 1 March 2005, these provisions can, in the relations between EU Member States, no longer be applied, but remain applicable in their relations to the other contracting parties to this convention: As regards a child with Turkish nationality and habitual residence in Germany, the jurisdiction of German courts was, up to 31 January 2017, to be based on Art. 1 of the 1961 convention and not on Art. 8 Regulation.4 Since 1 February 2017, i.e. the date of entry into force of the child protection convention of 19 October 1996 for Turkey, the 1961 convention is no longer applicable in the relations to Turkey. III. Decisions on the validity of marriages 3 The Luxembourg Convention of 8 September 1967 on the recognition of decisions con-

cerning the validity of marriages (letter b), concluded by the Commission Internationale de l’ État Civil CIEC, has been ratified by the EU Member States Austria (entry into force 10 December 1977) and the Netherlands (applicable since 10 July 1981, but – according to CIEC tables – denounced with effect of 13 September 2001) and by Turkey (in force since 10 December 1977, and so still applicable between Austria and Turkey). As regards the relations between EU Member States, it would have been completely inapplicable since 1 March 2005. IV. Divorces

4 The same result as described above applies to the Hague Convention of 1 June 1970 on the

recognition of divorces (letter c),5 which is in force for twelve Member States concerned (namely Cyprus, the Czech Republic, Estonia, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, Sweden and the United Kingdom) as well as for Albania, Australia, Denmark, Egypt, Moldova, Norway, Switzerlandand Macao. 1

2 3 4

5

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Comp. Kropholler in: Staudinger, Kommentar zum BGB, Vorbem B zu Art. 19 EGBGB: Internationales Kindschaftsrecht 1 (2003) note 26 et seq., Urs Peter Gruber in: Reinhold Geimer/Rolf A. Schütze (eds.), Internationaler Rechtsverkehr in Zivil- und Handelssachen nr. 796a. See Art. 61 note 1. As to its Art. 2 (applicable law) see Art. 62 note 1. Andrae IPRax 2006, 82, 84, Benicke IPRax 2013, 44, 51 against Wolfgang Hau in: Brütting/Helms (eds.) FamFG, 3. ed. § 99 n. 20. Comp. Christian von Bar, Die eherechtlichen Konventionen der Haager Konferenz(en), Rabels Zeitschrift für ausländisches und internationales Privatrecht 57 (1993), p. 63, 113 et seq.

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Chapter V: Relations with Other Instruments

Article 60

V. Custody decisions The European Convention of 20 May 1980 on recognition of custody decisions (letter d)6 is 5 in force for all EU Member States (including Denmark and the United Kingdom after the “Brexit”,7 but) with the exception of Slovenia and, on the other hand, for the following States: Andorra, Iceland, Liechtenstein, Macedonia, Moldova, Montenegro, Norway, Serbia, Switzerland, Turkey and Ukraine. This convention is also inapplicable as of 1 March 2005, as regards the recognition of decisions (including those according to its Art. 12 and also as regards its Art. 1 letter (d) (i) and (ii)) in custody matters in the relations between the EU States concerned, that is with the exception of Denmark and, in the future after the “Brexit”, the United Kingdom. VI. Child abduction The Hague Convention of 25 October 1980 on child abduction (letter e)8 is in force for all EU 6 Member States (including Denmark) and 68 other States (Albania, Andorra, Argentina, Armenia, Australia, Belarus, Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Chile, China [Hongkong and Macao], Costa Rica, Croatia, Ecuador, Georgia, Iceland, Israel, Korea [Republic of], Macedonia, Mauritius, Mexico, Moldova, Monaco, Montenegro, Morocco, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Russia, Serbia, Singapore, South Africa, Sri Lanka, Switzerland, Turkey, Ukraine, United States of America, Uruguay, Venezuela and Zambia as Member States of the Hague Conference on Private International Law and the following Non-Member States of the Hague Conference: Bahamas, Belize, Bolivia, Colombia, Dominican Republic, El Salvador, Fiji, Gabon, Guatemala, Guinea, Honduras, Iraq, Kazakhstan, Lesotho, Nicaragua, Pakistan, Saint Kitts and Nevis, San Marino, Seychelles, Thailand, Trinidad and Tobago, Turkmenistan, Uzbekistan and Zimbabwe) and will, independent of the “Brexit”, continue to be applicable in the relations of the United Kingdom with the EU Member States. As accession to the Convention has, according to its Art. 38, effect only as regards the relations between the acceding State and Contracting States that have declared to accept the accession, and as accessions have been accepted quite differently by parties to the Convention, the treaty is not applicable in the relations between all 93 Contracting States. Since according to the Opinion pursuant to Article 218 (11) TFEU of the ECJ (Grand Chamber – Avis1/13 – 14 October 2014, ECLI:EU:C:2014:2303, Opinion ECLI:EU:C:2014:2292), the European Union has exclusive external competence to decide on accessions to the Convention, there will be, in so far and at least for the future, uniformity among the EU States. The Convention concerns (only) prompt return of children wrongfully removed (its Art. 1, 7 12), in order to re-establish a former parental responsibility relationship after its violation by 6

7 8

Comp. Pirrung in: Staudinger, Kommentar zum BGB, Vorbem E zu Art. 19 EGBGB: Internationales Kindschaftsrecht 2 (2009) (ESÜ). See Introductory remarks to this chapter, note 1. Comp. Peter McEleavy, The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection? Netherlands International Law 2015, 365, Rhona Schuz, The Hague Child Abduction Convention. A Critical Analysis, 2013, Katarina Trimmings, Child Abduction within the European Union, 2013, Pirrung in: Staudinger, Kommentar zum BGB, Vorbem D zu Art. 19 EGBGB: Internationales Kindschaftsrecht 2 (2009) (HKÜ).

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a person who did not have complete and sole custody. Art. 2 number 11, and Art. 11, of the Regulation contain specific prevailing provisions regarding such a return, and Arts. 40–45 contain provisions concerning access as well as provisions addressing the specific situation dealt with in Art. 11 (8). But in substance these are only additions and facilitations for more favourable solutions to ensure the effective return of the child from one EU Member State to another; the Hague Convention is applicable for all other questions concerning an immediate return, which is confirmed by the references to the convention, for example in Art. 11.9. 8 The Commission Proposal abolishes letter (e) and introduces the following new provision: Article 74: Relation with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Where a child has been wrongfully removed to, or is being wrongfully retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, the provisions of the 1980 Hague Convention shall be applied in accordance with Chapter III of this Regulation. This is a real improvement clarifying that EU no longer leaves open only a secondary position for the Hague Convention. Chapter III on child abduction is much better formulated than the existing rules (Art. 11) and introduces important additional provisions to facilitate the application of the Convention.

Article 61: Relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children As concerns the relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, this Regulation shall apply: (a) where the child concerned has his or her habitual residence on the territory of a Member State; (b) as concerns the recognition and enforcement of a judgment given in a court of a Member State on the territory of another Member State, even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the said Convention. I. II. III.

9

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Habitual residence of the child in a Member State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. V. VI.

Recognition of Member State judgments 4 Relations with non-Member States . . . . . . . 5 The Commission’s Recast Proposal . . . . . . 6

Cf. Art. 11 notes 8, 9, 12 et seq., 77 (Pataut); as regards the relationship between this convention and the Regulation comp. also ECJ Case C-400/10 PPU J.MCB./.L.E., Judgment of 5 October 2010 [2010] ECR I-8965, ECLI:EU:C:2010:437 ‘Zeitschrift für Europäisches Privatrecht (ZEuP) 2011, p. 902, 907, with note Pirrung p. 912, 914; as to a restrictive understanding of the competence of the ECJ with regard to the interpretation of notions contained in the Hague abduction convention see Coester-Waltjen, Festschrift Lorenz, p. 305, 313.

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I. Introduction The relationship between the Regulation and the Hague Convention of 19 October 1996 on 1 Protection of Children1 merits specific attention. That convention was the substantial basis for those parts of the Regulation that deal with parental responsibility. It is now in force for all 28 EU Member States ( – with indication of the date of entry into force –: Austria 1 April 2011, Belgium 1 September 2014, Bulgaria 1 February 2007, Croatia 1 January 2010, Cyprus 1 November 2010, Czech Republic 1 January 2002, Denmark 1 October 2011, Estonia 1 June 2003, Finland 1 March 2011, France 1 February 2011, Germany 1 January 2011, Greece 1 June 2012, Hungary 1 May 2006, Ireland 1 January 2011, Italy 1 January 2016, Latvia 1 April 2003, Lithuania 1 September 2004, Luxembourg 1 December 2010, Malta 1 January 2012, the Netherlands 1 May 2011, Poland 1 November 2010, Portugal 1 August 2011, Romania 1 January 2011, Slovakia 1 January 2002, Slovenia 1 February 2005, Spain 1 January 2011, Sweden 1 January 2013 and the United Kingdom 1 November 2012) and the following other States (Albania 1 April 2007, Armenia 1 May 2008, Australia 1 August 2003, Cuba 1 December 2017, Dominican Republic 1 October 2010, Ecuador 1 September 2003, Georgia 1 March 2015, Lesotho 1 June 2013, Monaco 1 January 2002, Montenegro 1 January 2013, Morocco 1 December 2002, Norway 1 July 2016, Russia 1 June 2013, Serbia 1 November 2016, Switzerland 1 July 2009, Turkey 1 February 2017, Ukraine 1 February 2008 and Uruguay 1 March 2010; up to now, the signatures by the United States of America on 22 October 2010 and by Argentina on 11 June 2015 have not been followed by ratifications by these States). Ratification by all EU Member States should have happened several years ago, had not the Gibraltar problem hindered this. The substantial difference between this convention and the Regulation consists of the fact that the convention, following the example of the protection of minors convention of 1961, contains also provisions on private international law, while the Regulation does not, thus breaking the fundamental link between jurisdiction and applicable law, both based on the same grounds. After the “Brexit”, this Convention will be an important legal basis for the relations between the “remaining” EU Member States and the United Kingdom. II. Habitual residence of the child in a Member State Where jurisdiction and recognition are concerned, the Regulation applies, whenever the 2 child, at the relevant time, has habitual residence in a Member State, letter (a). If the child had his or her habitual residence outside the EU, under the Regulation, the courts of the Member States will have jurisdiction immediately upon a change of habitual residence to any Member State. If the child no longer has his or her habitual residence in a Member State, jurisdiction can no longer be established on the basis of the Regulation, as Arts. 9 and 10 only apply among Member States. This is with the exception of a prorogation based on Art. 12 (4), namely if the child is habitually resident in a third country which is not a contracting party of the Hague Convention of 1996. If the child is habitually resident in a State that is a party to the 1996 convention, only that Convention applies.2 1

2

Katharina Hilbig-Lugani in: Rauscher, Europäisches Zivilprozess- und Kollisionsrecht EuZPR/EuIPR4 (2016) B.I.6, p. 3, Rainer Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), note B 268, J 311 (p. 244, 843) et seq., Pirrung in: Staudinger, Kommentar zum BGB, Vorbem G zu Art. 19 EGBGB: Internationales Kindschaftsrecht 2 (2009) (KSÜ), Andrea Schulz, Kohärenz p. 110, 118 et seq. Cf. Art. 12 note 56 (Pataut), McEleavy, Commitment, 371, 375; as to the uncertainty when a child has no

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III. Applicable Law 3 Because the Regulation does not contain any provisions on applicable law as to the substance

matter of parental responsibility cases, it cannot be opposed to the application of any legal source with rules on private international law, applicable according to the (national) law which the court that has jurisdiction has to apply, i.e. especially the Hague conventions of 5 October 1961 and/or – nowadays mostly – of 19 October 1996. Although, in principle, there is a close link between the rules concerning jurisdiction and applicable law in both conventions, this does not hinder the application of the PIL law rules of both conventions, where the jurisdiction of the court derives from a corresponding disposition of the Regulation.3 IV. Recognition of Member State judgments 4 According to letter (b) recognition in a Member State of a judgment rendered in another

Member State is always based on the Regulation, even if the child has a habitual residence in a contracting State of the 1996 Convention which is not an EU Member. This case is not covered by Art. 52 of the 1996 Convention, a circumstance that may lead to limping recognitions,4 in the sense of judgments on parental responsibility recognized in one State, but not in other States. V. Relations with non-Member States 5 In the relations with non-Member States the 1996 Convention applies, whenever the child

has no habitual residence in one of the EU Member States (1996 Convention, Art. 52). VI. The Commission’s Recast Proposal 6 The Commission Proposal provides, instead of Art. 61, the following new Art. 75:

3

4

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habitual residence at all, see McEleavy 377; Rauscher/Hilbig-Lugani, EuZPR/EuIPR (2016) Einl KSÜ Rn 19, p. 12, expresses the opinion that in cases where the jurisdiction of an EU Member State cannot be founded on a habitual residence in that state, but only on specific grounds of jurisdiction of both the Regulation and the 1996 convention (f.e. art. 7 of the convention and art. 10 Brussels IIbis or art. 6 of the convention and art. 13 Brussels IIbis), the Regulation can be applied with precedence to the convention on the basis (of an analogy to art. 61 [a] or – preferably – ) of art. 59 paragraph (1) Brussels Ibis; this reasoning cannot be followed, because it is contrary to the wording of art. 61 (a) Regulation (as the author sees herself) and the idea underlying art 52 of the convention: so only the convention should be applied. McEleavy, Commitment, 371, 378, Gördes 295, Wagner/Janzen, FPR 2011, p. 110, 111 et seq., Benicke IPRax 2013, 44, 53, Geimer/Schütze/Bischoff 545.611, Art. 61 note 5; against Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht4 (2015) Art. 8 Brüssel IIa-VO notes 21–25, Martiny, ERA-Forum I/2003, 97, 111. Comp. the notion of ‘limping marriages’ (mariages boiteux, hinkende Ehen); cf. also Pirrung, Brüche zwischen internationaler und europäischer Rechtsvereinheitlichung, in: Symposium Spellenberg (München 2006), p. 89, 92, a problem not treated in Practical Guide to the Regulation 45.

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Article 75: Relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1. As concerns the relation with the 1996 Hague Convention this Regulation shall apply: (a) subject to paragraph 2, where the child concerned has his or her habitual residence in the territory of a Member State; (b) as concerns the recognition and enforcement of a decision given by an authority of a Member State in the territory of another Member State, even if the child concerned has his or her habitual residence in the territory of a State which is a contracting Party to the said Convention and in which this Regulation does not apply. 2. Notwithstanding paragraph 1, (a) where the parties have agreed upon the jurisdiction of an authority in a State Party to the 1996 Hague Convention in which this Regulation does not apply, Article 10 of that Convention shall apply; (b) with respect to the transfer of jurisdiction between an authority in a Member State and an authority in a State Party to the 1996 Hague Convention in which this Regulation does not apply, Articles 8 and 9 of that Convention shall apply; (c) where proceedings relating to parental responsibility are pending before an authority of a State Party to the 1996 Hague Convention in which this Regulation does not apply at the time when an authority in a Member State is seized of proceedings relating to the same child and involving the same cause of action, Article 13 of that Convention shall apply. 3. When applying Chapter III – Applicable Law of the 1996 Hague Convention in proceedings before an authority of a Member State, the reference in Article 15(1) of that Convention to ‘the provisions of Chapter II’ of that Convention shall be read as ‘the provisions of Section 2 of Chapter II of this Regulation’.

Paragraph (1) retains the present disposition with important clarifying improvements at the 7 beginning of letter (a) as well as at the very end of the paragraph and some technical alignments (all here in italics) to the new general approach regarding f.e. the notion of “authority”. Paragraph (2) expressly guarantees the application of Arts. 8 (forum non conveniens), 9 (forum conveniens), 10 (effect of agreements on jurisdiction to take child protection measures in divorce proceedings) and 13 (lis pendens) of the Hague 1996 Convention in the relations to “third” countries. Paragraph (3) clarifies the answer to a question much discussed as to the possibility of applying the private international law provisions of the 1996 Convention in cases where jurisdiction is not based on that Convention, but on the Regulation (only), in the correct sense.5 Article 62: Scope of effects 1. The agreements and conventions referred to in Articles 59 (1), 60 and 61 shall continue to have effect in relation to matters not governed by this Regulation. 2. The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue

5

Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), note B 487 (p. 313), Pirrung in: Staudinger, Kommentar zum BGB Vorbem C 216, G 101 zu Art. 19 EGBGB: Internationales Kindschaftsrecht 2 (2009), comp. also note 3 above (fn.3).

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to produce effects between the Member States which are party thereto, in compliance with Article 60.

1 In all matters not governed by the Regulation the instruments mentioned in Arts. 59 (in-

cluding – against the text – paragraph [2]), 60 and 61 shall continue to apply. So Arts. 2, 3, 5, 12, 13 of the 1961 Convention on the protection of minors (Art. 60 letter [a]) remained applicable in relations among the Member States concerned, as long as the 1996 Convention was not yet generally in force in the EU. As meanwhile all EU Member States have ratified the 1996 Convention,1 its Arts. 15–22 (private international law) are applicable, even in cases where the jurisdiction of the court is based on the Regulation.2 The Hague Convention of 1980 on child abduction continues to be applied generally with some exceptions, especially according to Art. 11 of the Regulation.

2 If paragraph (2) has any specific additional value at all, it may be understood as stressing the

importance of applying the substance of the 1980 Convention. In exceptional cases where jurisdiction and/or recognition/enforcement can partly be based on the Regulation and partly on other instruments, the different sets of rules are to be applied on the respective parts of the litigation.3 3 The Commission Proposal retains the essential idea of the provision, adapts the enumera-

tion of the Articles referred to and expressly emphasizes the importance of the 1996 Convention: Article 76: Scope of effects 1. The agreements and conventions referred to in Articles 72 to 75 shall continue to have effect in relation to matters not governed by this Regulation. 2. The conventions referred to in Articles 73, 74 and 75, in particular the 1980 and 1996 Hague Conventions, continue to produce effects between the Member States which are party thereto, in compliance with Articles 73, 74 and 75.

Article 63: Treaties with the Holy See 1. This Regulation shall apply without prejudice to the International Treaty (Concordat) between the Holy See and Portugal, signed at the Vatican City on 7 May 1940. 2. Any decision as to the invalidity of a marriage taken under the Treaty referred to in paragraph 1 shall be recognised in the Member States on the conditions laid down in Chapter III, Section 1. 3. The provisions laid down in paragraphs 1 and 2 shall also apply to the following international treaties (Concordats) with the Holy See: (a) ‘Concordato lateranense’ of 11 February 1929 between Italy and the Holy See, modified by the agreement, with additional Protocol signed in Rome on 18 February 1984; 1 2 3

470

See Art. 61 note 1. See Art. 61 notes 3, 6 (fn. 3, 5). Mankowski Art. 70 Brussels I, note 3.

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(b) Agreement between the Holy See and Spain on legal affairs of 3 January 1979; (c) Agreement between the Holy See and Malta on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993, including the Protocol of application of the same date, with the second Additional Protocol of 6 January 1995. 4. Recognition of the decisions provided for in paragraph 2 may, in Spain, Italy or Malta, be subject to the same procedures and the same checks as are applicable to decisions of the ecclesiastical courts handed down in accordance with the international treaties concluded with the Holy See referred to in paragraph 3. 5. Member States shall send to the Commission: (a) a copy of the Treaties referred to in paragraphs 1 and 3; (b) any denunciations of or amendments to those Treaties.

The application of the Regulation shall be without prejudice to the Concordats of the Holy 1 See with Portugal (paragraph [1]), Italy (paragraph [3], letter [a],1 with agreement),2 Spain (paragraph [3], letter [b]3 and Malta (paragraph [3], letter [c]).4 Art. 59 (1) does not apply to them. Paragraphs (1), (2) (a, b), (3), (5) originated from Art. 42 of the draft Convention of 28 May 1998,5 paragraphs (3) letter [c), and (4) have been inserted by Art. 1 (1) and (2) of Regulation 2116/2004. The Article concerns only the recognition of ecclesiastic decisions, not, f. e., jurisdiction; where civil marriages and divorces of ecclesiastic marriages are permitted by national law, as is the case f.e. in Portugal, the provision does also not apply with regard to the recognition of such divorces. On the whole, the rules established by, and underlying, this Article of the Regulation might, perhaps (in the Commission Proposal, where, up to now, it remains unchanged), have been formulated in a somewhat more transparent way. Recognition of decisions on the invalidity of a marriage under these international treaties 2 follows the normal rules in Arts. 21 et seq., paragraphs (2), (3). Foreign annulments are recognized in other Member States after having been confirmed by the appropriate court of the State and registered.6

1

2 3 4

5

6

Comp. http://www.vatican.va/roman_curia/secretariat_state/archivio/documents/rc_seg-st_19290211_ patti-lateranensi_it.html. Text in: http://www.concordatwatch.eu/topic-39221.834. English translation in: http://www.religlaw.org/content/religlaw/documents/agrsphs1976.htm. Agreement (signed 3 February 1993: revision signed 27 January 2014), text in: http://www.concordat watch.eu/topic-49758.834. See Borrás, Explanatory Report n. 120–124, especially as regards the differences between Portugal and the other States mentioned because of the exclusive jurisdiction of ecclesiastical courts to annul catholic marriages, while divorces are dealt with by normal courts; the consequence is that foreign annulments by normal (State) courts, in contrast to divorces, cannot be recognized; as to details see Spellenberg in: Staudinger, Kommentar zum BGB, IntVerfREhe (2015) Art. 63 notes 1 et seq., 7; Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht4 (2015) Art. 63 Brüssel IIa-VO notes 1 et seq., comp. especially, as to some doubts concerning the formulation Spellenberg note 11, with regard to the equilibrium of some consequences of the rules established, Rauscher note 8. For details see Spellenberg (fn. 5) Art. 63 note 4, 7, Rauscher (fn. 5) Art. 63 note 7 et seq. (delibation).

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3 In Italy, Spain and Malta safe-guards identical to those regarding decisions of ecclesiastic

courts may be requested, paragraph (4). There are serious doubts concerning the justification of the consequences of this rule with regard to other Member States.7 4 On 18 May 2004 Portugal signed a new Concordat with the Holy See (comp. paragraph [5]

letter b).8

Chapter VI: Transitional Provisions Article 64 1. The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after its date of application in accordance with Article 72. 2. Judgments given after the date of application of this Regulation in proceedings instituted before that date but after the date of entry into force of Regulation (EC) No. 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation if jurisdiction was founded on rules which accorded with those provided for either in Chapter II or in Regulation (EC) No. 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. 3. Judgments given before the date of application of this Regulation in proceedings instituted after the entry into force of Regulation (EC) No.1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings. 4. Judgments given before the date of application of this Regulation but after the date of entry into force of Regulation (EC) No. 1347/2000 in proceedings instituted before the date of entry into force of Regulation (EC) No. 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings and that jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in Regulation (EC) No.1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

7

8

472

Comp. Rauscher (fn. 5) Art. 63 note 8, Kai Bischoff in: Reinhold Geimer/Rolf A. Schütze (eds.), Internationaler Rechtsverkehr in Zivil- und Handelssachen nr. 545.618 note 7. Text (Translated from the Italian by David Holohan) in: http://www.concordatwatch.eu/showtopic.php? org_id=1361&kb_header_id=4131.

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Bibliography Chytla/Miszczuk, Anerkennung und Vollstreckung von Entscheidungen in Polen, eastlex 2006, 153 Hau, Intertemporale Probleme der Brüssel II-VO, IPRax 2003, 461 Hess, Die intertemporale Anwendung des Europäischen Zivilprozessrechts in den Beitrittsstaaten, IPRax 2004, 374 I. II. III. IV. V.

General considerations . . . . . . . . . . . . . . . . . . . . . 1 Rules on jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 2 Documents and authentic instruments . . 7 Agreements between the parties . . . . . . . . . . 9 Rules on recognition and enforcement . . . 10 1. Main rule: Application of the Brussels IIbis regime for judgments given after 1 March 2005 stemming from proceedings instituted after 1 March 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Main extension: Application of the Brussels IIbis regime for judgments given after 1 March 2005 stemming from proceedings instituted before 1 March 2005 under additional requirements by virtue of (2) . . . . . . . . . . . 12 3. Further extension: Application of the Brussels IIbis regime for judgments given

Kaller, Der Anwendungsbereich der Verordnung Brüssel IIa, FamZ 2007, 168 Klauser/Horn, Brüssel IIa-Verordnung in Kraft, ecolex 2004, 910.

between 1 March 2002 and 1 March 2005 stemming from proceedings instituted after 1 March 2001 (or 1 May 2004 respectively) by virtue of (3) . . . . . . . . . . . . 17 4. Ultimate extension: Application of the Brussels IIbis regime for judgments given before 1 March 2005 stemming from proceedings instituted before 1 March 2001 (or 1 May 2004 respectively) by virtue of (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 5. Remaining gaps in the overall system? 26 VI. Rules on lis pendens . . . . . . . . . . . . . . . . . . . . . . . . 29 VII. Accession of ten new Member States on 1 May 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 VIII. Accession of Bulgaria and Romania on 1 January 2007 and of Croatia on 1 January 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 IX. Future accessions to the EU . . . . . . . . . . . . . . . 35

I. General considerations Art. 64 contains the main rule of transition and defines the temporal scope of application of 1 the Brussels IIbis Regulation. The principle of non-retroactivity is implemented but for the exceptions in (2) which extend the even more favourable rules on recognition and enforcement as implemented by the Regulation under specified circumstances to judgments given before the Regulation entered into force. II. Rules on jurisdiction If the proceedings were instituted only after, accurately phrased: the date when the Regu- 2 lation became effective, i.e. 1 March 2005, the Regulation shall apply.1 The wording of (1) is

1

Cf. only OGH ZfRV 2006, 70; CA Lyon EuLF 2008, II-26, II-27; Rb. Maastricht, sector kanton, locatie Heerlen NIPR 2006 Nr. 18 p. 35; Klauser/Florian Horn, ecolex 2004, 910, 911; Kaller-Pröll, in: Fasching/ Konecny, Art. 64 note 3.

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painstakingly and carefully drafted insofar as it refers to that date of application as spelled out in Art. 72, not to the entry into force of the Regulation.2 3 If the proceedings at stake were commenced before the date of effective application of the

Regulation, the jurisdictional regime does not apply and jurisdiction for such proceedings has to be determined in accordance with the rules previously in force in the respective Member State including the Brussels II Regulation and international treaties.3 4 (1) refrains from applying the rules of the Regulation retroactively at the outset.4 Thus the

applicant’s case is lost for lack of jurisdiction if the court seized did not have jurisdiction pursuant to the rules in force when the lawsuit was initiated even if now the Regulation would provide a fitting head of jurisdiction rendering the court seized competent if only the proceedings had been instituted after the entry into force of the Regulation.5 On the other hand, jurisdiction is retained as a matter of perpetuatio fori if jurisdiction existed at the time when the proceedings were instituted before 1 March 2005, pursuant to the then applicable rules whereas a like head of jurisdiction would not exist under the Brussels IIbis Regulation.6 Insofar the balance between the applicant’s interests and the need to protect the defendant is struck in the plaintiff’s favour.7 The defendant gains sufficient protection from Art. 64 (2) when it comes to recognising and enforcing the judgment rendered by a court exerting jurisdiction vested in it by traditional rules of national law. 5 As to when proceedings are instituted is not expressly defined in (1) nor is any express

reference to Art. 16 made or else contained. Nevertheless, to answer the question by applying the yardsticks of Art. 168 appears by far the most convincing manner. Methodologically some doubts might remain,9 but every alternative would be even more imperfect since it would consist of a recourse to the diverging national laws of the Member States10 giving the 2 3

4

5

6

7 8

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OGH ZfRV 2006, 70. Cf. only Hof Arnhem NIPR 2001 Nr. 93 p. 212; Hof ’s-Gravenhage NIPR 2006 Nr. 11 p. 29; Hof Arnhem NIPR 2007 Nr. 270 p. 358; Hof Arnhem NIPR 2007 Nr. 275 p. 366; M v. H (2005) EWHC 1186 (Fam) (F. D., Charles J.); AP Santa Cruz de Tenerife REDI 2005, 364. OGH ZfRV 2005, 157; Quinoñes Escámez, REDI 2005, 365, 367; cf. also Hof ’s-Gravenhage NIPR 2006 Nr. 11 p. 29. Cf. – under the Brussels Convention – BGHZ 116, 77 = ZZP 105 (1992), 330 with note Bork; BGE 119 II 391, 393 = SZIER 1995, 39 with note Schwander; Staudinger, in: Rauscher, Art. 66 Brüssel I-VO note 3; Geimer/Schütze Art. 66 EuGVVO note 3. Cf. – under the Brussels I Regulation – A-G Strikwerda, NIPR 2004 Nr. 98 p. 171. Contra Thorn, IPRax 2004, 354, 355. Contra Thorn, IPRax 2004, 354, 355. OGH ZfRV 2006/7; Dilger, in: Geimer/Schütze, Art. 64 notes 3 et seq.; Spellenberg, in: Staudinger, Art. 64 notes 35 et seq.; Rauscher, in: Rauscher, Art. 64 note 5; Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 7. Cf. likewise with regard to Art. 30 Brussels I Regulation under Art. 66 (1) Brussels I Regulation OGH ZfRV 2004, 32; LG Berlin IPRax 2005, 261 with note Jayme; Béraudo, Clunet 128 (2001), 1033, 1036; Kropholler Art. 66 EuGVVO note 2; Briggs/Rees para. 2.21; Schlosser Art. 66 note 11; Hau, IPRax 2003, 461; Geimer/Schütze Art. 66 note 2; Mayr, in: Firsching/Konecny (eds.), Kommentar zu den Zivilprozessgesetzen, vol. III (2nd ed. 2004) Vor § 230 ZPO note 49; Mayr, RabelsZ 69 (2005), 558, 566; Rauscher, in: Rauscher, Art. 64 notes 4–5; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels Ibis Regulation note 6.

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Regulation an uneven start depending on the law of the respective forum state.11 Seizing upon assistance rendered by Art. 16 has at least the major advantage of being a solution uniform in the starting point and guaranteeing for a single mode how the Regulation entered into force for all Member States throughout the entire EU12 (with the exception of Denmark, that is). That the wordings of Art. 64 and Art. 16 respectively are not perfectly synchronised as both employ different language should not amount to an obstacle effectively.13 The point of time as to when a judgment is deemed to be rendered is not governed by EU 6 law, but by the rules of the respective lex fori processus of the court which has given judgment.14 The relevant point of time is when the judgment becomes effective (if only preliminarily),15 not when it eventually becomes res iudicata or gains enforceability.16 Even more precisely, one should recur to the point of time on which according to the lex fori processus the court rendering the decision does not have authority and capability to alter the decision any more, the point of time when the decision becomes binding upon the court giving it.17 Service of the decision upon the parties might imply identifying the proper parties and thus cause difficulties.18 A judgment must meet the definition of Art. 2 (4) and must be enforceable in the Member State of origin by virtue of Art. 28 (1) which two conditions might help to identify which is the judgment at stake.19 III. Documents and authentic instruments (1) asserts that the Brussels IIbis Regulation is only applicable to documents drawn up after 1 7 March 2005. The wording is quite clear and unambiguous in this regard.20 It bears no relevance as to when such document might have become enforceable.21 If authentic instrument was effected the relevant point of time is when the registration as authentic instrument took place.

9

10

11

12 13 14 15

16

17 18 19 20 21

OLG Düsseldorf IHR 2004, 108, 109; Staudinger, in: Rauscher, Art. 66 Brüssel I-VO note 2; Thorn, IPRax 2004, 354, 355 fn. 8. OLG Stuttgart MDR 2003, 350, 351 with note Stefan Braun; Staudinger, in: Rauscher, Art. 66 Brüssel-Ia VO note 2; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels Ibis Regulation note 6. Hau, IPRax 2003, 461; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels Ibis Regulation note 6. See also (for the Brussels Convention which did not comprise an equivalent to the present Art. 16 nor Art. 30 Brussels Regulation) BGHZ 132, 105, 107. See Mankowski, in: Magnus/Mankowski, Art. 66 Brussels Ibis Regulation note 6. Geimer/Schütze Art. 66 EuGVO note 2. C (Case C-435/06), [2007] ECR I-10141, I-10191 para. 71; Rauscher, in: Rauscher, Art. 64 note 10. Rolf Wagner, IPRax 2001, 73, 80 et seq.; Helms, FamRZ 2001, 257, 260; Spellenberg, in: FS Ekkehard Schumann (2001), p. 423, 431; Dilger, in: Geimer/Schütze, Art. 64 note 9; Rauscher, in: Rauscher, Art. 64 note 10. Dilger, in: Geimer/Schütze, Art. 64 note 9; Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 8; Großerichter, in: Althammer, Art. 64 note 3. Contra Spellenberg, in: Staudinger, Art. 64 note 15. Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 8. Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 8. A-G Kokott, [2007] ECR I-10144, I-10165 paras. 65 et seq. Hess, IPRax 2004, 374, 376. Hess, IPRax 2004, 374, 375 et seq.; Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 6.

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8 A problem is generated by the fact that Art. 71 (1) formally repeals the Brussels II Regulation

without any reservation. Accordingly, documents drawn up, and authentic instruments registered before 1 March 2005, cannot rely on the Brussels II regime as a means of enforcing them since that regime has vanished to exist. This creates some kind of gap to the parties’ detriment which cannot be intended by the EU organs. The best solution to handle this should be to apply (3) per analogiam.22 IV. Agreements between the parties 9 Agreements between the parties are subject to the Brussels IIbis Regulation by virtue of (1) if

they are concluded after 1 March 2005. This in particular envisages agreements on choice of forum or jurisdiction under Art. 12.23 Agreements are concluded once all parties concerned have assented to them regardless as to when parties stipulate them to become effective. V. Rules on recognition and enforcement 10 As to judgments, Art. 64 (2)–(4) introduces a rather complicated system not easily to be

grasped.24 Which paragraph is the relevant one depends primarily on when judgment was given and secondarily when the respective proceedings were instituted. 1. Main rule: Application of the Brussels IIbis regime for judgments given after 1 March 2005 stemming from proceedings instituted after 1 March 2005 11 The main rule nevertheless is clear and clad in iron: The Brussels IIbis regime applies

wholeheartedly to judgments rendered after 1 March 2005. This is not spelt out expressly but must be drawn by inference from (2): Since the Brussels IIbis regime applies to judgments given after 1 March 2005 generated by proceedings instituted before that date, it must apply a fortiori to judgments given after 1 March 2005 generated by proceedings instituted after that date. 2. Main extension: Application of the Brussels IIbis regime for judgments given after 1 March 2005 stemming from proceedings instituted before 1 March 2005 under additional requirements by virtue of (2) 12 (2) establishes three requirements which have to be applied cumulatively in order to trigger

the application of the Brussels IIbis rules on recognition and enforcement:25 – The application became pending, and proceedings were instituted, after the entry into force of the Brussels II Regulation.26 – Judgment was given after the entry into force of the Brussels IIbis Regulation. – Jurisdiction was founded on rules which accorded with those provided for either in Chapter II or in Regulation (EC) No. 1347/2000 or in a convention concluded between 22 23 24 25

26

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Rauscher, in: Rauscher, Art. 64 note 19; Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 21. Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 12. Vlas/Ibili, WPNR 6616 (2005), 263, 271. C (Case C-435/06), [2007] ECR I-10141, I-10191 para. 70; A-G Kokott, [2007] ECR I-10144, I-10165 para. 62. Cf. C (Case C-435/06), [2007] ECR I-10141, I-10192 para. 72.

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the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. (2) is some exception to the general rule contained in Art. 24 not permitting the court before 13 which recognition or enforcement is sought, to review the jurisdiction of the court having rendered judgment.27 For the limited purposes of recognition and enforcement it does not matter as to when the 14 proceedings were instituted if only judgment was given after 1 March 2005. (2) is applicable even if the proceedings were instituted already before the Brussels II Regulation became operative. Accordingly, there is no need to establish an analogy to (4) in cases where the proceedings were instituted that early and judgment was given only after 1 March 2005.28 The jurisdictional rules which were applied by the court of origin in the concrete case must 15 accord with those of the Brussels II Regulation or an international convention between the Member State of origin and the Member State addressed. If the rules applied were those of the Brussels II Regulation the case is clear and clear-cut. Jurisdictional rules which formed part of the national law of the original forum must be scrutinized as to their substance and compared to the rules of the Brussels II Regulation.29 The requirement to be fulfilled is concrete equivalence for the concrete case,30 i.e. that the case would have been heard in the respective forum also if the Brussels II Regulation had been in force. It is not necessary that the abstract rules as such mirror the rules of the Brussels II Regulation. The term “judgment” relates to the original judgment at last instance in the country of 16 origin, not to any kind of later order declaring it enforceable; only the former is relevant for the purposes of (2).31 On the other hand, an express “confirmation” is more than a simple certificate of enforceability of an earlier judgment, and may be in essence a judgment in its own right.32 Insofar as an appeal does not have dilatory effect as it is the case in matters of access rights pursuant to Art. 41 the original order matters.33 3. Further extension: Application of the Brussels IIbis regime for judgments given between 1 March 2002 and 1 March 2005 stemming from proceedings instituted after 1 March 2001 (or 1 May 2004 respectively) by virtue of (3) According to (3), judgments given before the date of application of this Regulation in 17 proceedings instituted after the entry into force of the Brussels II Regulation shall be recognised and enforced in accordance with the provisions of Chapter III of the Brussels IIbis Regulation provided they relate to divorce, legal separation or marriage annulment or

27 28 29

30 31 32 33

Cf. only Klauser/Florian Horn, ecolex 2004, 910, 911. Contra Klauser/Florian Horn, ecolex 2004, 910, 911. C (Case C-435/06), [2007] ECR I-10141, I-10192 paras. 75 et seq.; A-G Kokott, [2007] ECR I-10144, I-10166 para. 70. Cf. C (Case C-435/06), [2007] ECR I-10141, I-10192 paras. 75 et seq. AD v. CD and AD (2008) 1 FLR 1003, 1011 (C.A., ct. judgm. delivered by Thorpe L.J.). AD v. CD and AD (2008) 1 FLR 1003, 1012 et seq. (C.A., ct. judgm. delivered by Thorpe L.J.). AD v. CD and AD (2008) 1 FLR 1003, 1011 (C.A., ct. judgm. delivered by Thorpe L.J.).

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parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings. 18 In contrast to (2), (3) does not require that the court deciding has actually applied the

jurisdictional regime of the Brussels II Regulation. The notion of applicability of that very regime suffices. 19 This solution is extended even a step further in the event that the judgment at stake was

given by a court in an Accession State (which by its very nature cannot have been a Member State of the Brussels II Regulation before 1 May 200434 or in the event of Bulgaria or Romania never): Then it is sufficient that such court would have applied the Brussels II jurisdiction rules had they been applicable.35 20 The Brussels IIbis regime is extended and to some extent applied retrospectively. This might

enhance enforceability of judgements related to the spouses’ common children which were already covered by the Brussels II Regulation. Such effect could be detrimental for parties who relied on the grounds to refuse and deny recognition as contained in the now repealed Brussels II Regulation. Yet to continue to apply the Brussels II Regulation36 despite its being repealed would be in contradiction to the clear wording of (3) demanding the application of the Brussels IIbis Regulation.37 4. Ultimate extension: Application of the Brussels IIbis regime for judgments given before 1 March 2005 stemming from proceedings instituted before 1 March 2001 (or 1 May 2004 respectively) by virtue of (4) 21 Recognition ought to take place by virtue of (4) if the proceedings relate to divorce, legal

separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings and if jurisdiction was founded on rules which accorded with those provided for either in Chapter II of the Brussels IIbis Regulation or in the Brussels II Regulation or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.38 For the purposes of the last option, one needs to identify the Member State where recognition is sought after, and whether a bilateral or multilateral convention is in force between that State and the Member State of origin.39 22 The overall solution is very generous and tends to apply the Brussels IIbis regime on rec-

ognition quite extensively40 wherever justifiable. It does not matter which jurisdictional rules the court of origin has applied in fact or even whether the jurisdictional rules on which the 34

35 36 37 38 39

40

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Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6906 para. 26; A-G Kokott, [2009] ECR I-6874, I-6880 para. 20. de Boer, NJ 2011 Nr. 347 p. 3513. To such avail Rauscher, in: Rauscher, Art. 64 note 13. Kaller-Pröll, in: Fasching/Konecny, Art. 64 note 30. An example for application of (4) is provided by Cass. Clunet 137 (2010), 814 with note Chalas. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6906 et seq. para. 29. A-G Kokott, [2009] ECR I-6874, I-6881 para. 23.

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court of origin founded jurisdiction can be identified form the judgment at all.41 This must be regarded as having no bearing on the main proceedings if the jurisdiction of the court of origin was able to be established by Brussels IIbis standards, in particular those generated by Art. 342 or Art. 8.43 It needs only be shown that the court of origin would also have had jurisdiction on the basis of Brussels IIbis or Brussels II or convention standards.44 Standards must only accord45 which means material and substantial accordance. However, to a certain extent (4) still is an exception from the general principle that the court 23 addressed should not review the jurisdiction of the court of origin.46 In the event of a court in an Accession State giving judgment, (4) is applicable if judgment 24 was given before 1 March 2005 stemming from proceedings instituted before 1 May 2004, the date on which the Brussels II Regulation took effect in these States.47 Bulgaria and Romania do not feature in this context since their accession to the EU became 25 effective only as of 1 January 2007, hence after 1 May 2005. They have never been Member States of the Brussels II Regulation since they acceded only after the Brussels IIbis Regulation had become applicable and had repealed the Brussels II Regulation. 5. Remaining gaps in the overall system? Despite the first impression the overall system as contained in (2)-(4) is said not to be 26 comprehensive and conclusive. In rare instances, there are still gaps and lacunae. The most prominently discussed one in the past were said to be judgments given after 1 March 2005 stemming from proceedings instituted before 1 March 2001. A clear-cut solution would be to apply the Brussels IIbis regime which would appear justified by the date when the judgment was given triggering its application.48 (2) does not depend on the proceedings being instituted after a certain point of time.49 Insofar (2) deviates and explains (1). At least this would be a simpler and more intelligible solution than to apply (4) per analogiam.50

41

42

43 44 45 46

47

48 49 50

Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6907 para. 30; A-G Kokott, [2009] ECR I-6874, I-6881 para. 23. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6907 para. 30; A-G Kokott, [2009] ECR I-6874, I-6881 paras. 23–24. C (Case C-435/06), [2007] ECR I-10141, I-10192 para. 74. A-G Kokott, [2009] ECR I-6874, I-6881 para. 23. Cf. C (Case C-435/06), [2007] ECR I-10141, I-10192 para. 76. Cf. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6908 para. 33. Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), [2009] ECR I-6871, I-6906 paras. 27–28. Similarly Rauscher, in: Rauscher, Art. 64 note 17. Rauscher, in: Rauscher, Art. 64 note 17. As Klauser/Florian Horn, ecolex 2004, 910, 912; Kaller, iFamZ 2007, 168; Kaller-Pröll, in: Fasching/ Konecny, Art. 64 note 37 advocate for.

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27 Documents drawn up, and authentic instruments registered before 1 March 2005 should be

subject to (3) per analogiam.51

28 A clear, natural and self-evident gap and self-restriction is that the Brussels IIbis Regulation

does not apply to judgments rendered even before 1 March 2001.52 VI. Rules on lis pendens 29 The third body of rules contained in the Regulation and not to be overlooked consists of

Arts. 16–19 and is concerned with issues of lis pendens and interrelated lawsuits, moulded by the newly introduced definition when proceedings are instituted, in Art. 16. Art. 64 does not address the issue of lis alibi pendens expressly. Whereas at first glance it might not be the most burning issue to answer as to which extent the new or the old rules apply since they are in general the same, the disappearance of Art. 11 (2) Brussels II Regulation and its substantial reformulation in Art. 19 (1) Brussels IIbis Regulation raises nonetheless the necessity to face the issue. To apply the new rules already if both lawsuits are pending after 1 March 2005 would be the simplest approach.53 Yet this would not be in line with the solution developed for the intertemporal scope of application of the rules on lis pendens under the Brussels IIbis regime. This solution is more complex but ought to be advocated for if only for the sake of uniformity of interpretation of parallel issues under parallel regimes. The answer is clear-cut in two of three possible situations, though: If both sets of proceedings are instituted after the relevant date, the Regulation applies. And if both sets of proceedings were instituted before the relevant date, the Regulation does not apply.54

30 But the most intricate and complicated instance is the third situation: One set of proceedings

is instituted before, the other after the relevant date. Two limbs – and a limping result? In van Horn v. Cinnamond the ECJ attempted an answer along the lines of what was then Art. 54 (2) Brussels Convention.55 If this is transferred to the Regulation, (2) could come to the rescue.56 Art. 19 shall prevent the danger of colliding judgments being entered into which could issue conflicting calls for recognition in other Member States. Once Arts. 22 (d); 23 (f) are applicable, recognition of judgments would be governed by the Brussels IIbis Regulation; hence Art. 19 should govern any pre-emptive attempt at avoiding conflicting judgments.57 The ensuing solution would read as follows: The court seized second stays the proceedings pending before it pursuant to Art. 19 (1) until the court seized first has decided whether it 51 52 53

54

55

56

57

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Supra Art. 64 note 8 (Mankowski). Rauscher, in: Rauscher, Art. 64 note 16. Cf. Hof ’s-Gravenhage NIPR 2006 Nr. 12 p. 30 and also Tavoulareas v. Tsavliris (2006) I.L.Pr. 314, 332 et seq. (Q.B.D., Peter Smith J.). Miles Platt Ltd. v. Townroe Ltd. (2003) 1 All ER 561, 562 (C.A., per Black J.); Mankowski, in: Magnus/ Mankowski, Art. 66 Brussels I Regulation note 23. Elsbeth Freifrau von Horn v. Kevin Cinnamond (Case C-163/95), (1997] ECR I-5451, I-5474 et seq. paras. 15–25. Gottwald, in: Münchener Kommentar zur ZPO Art. 66 EuGVO note 2; Großerichter, in: Althammer, Art. 64 note 5; Rauscher, in: Rauscher, Art. 64 note 22; Staudinger, in: Rauscher, Art. 66 Brüssel Ia-VO note 15. See also for the parallel question under Art. 42 of the original Brussels II Regulation OGH IPRax 2003, 456, 457; Hau, IPRax 2003, 461. Großerichter, in: Althammer, Art. 64 note 5.

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has jurisdiction. If the court seized first denies its own jurisdiction, the court seized second lifts the stay and commences the trial. If the court seized first declares itself competent, the court seized second ought to countercheck whether this assertation is correct since only in the event that the judgment eventually rendered by the court seized first will have to be recognised pursuant to (2) it is justified that the court seized second declares itself incompetent and dismisses the proceedings pending before it by virtue of Art. 19 (2).58 This pinches through the first clause of Art. 24, but appears reasonable enough at least if the court seized second exercises its control and countercheck according to yardsticks borrowed from the Brussels or Lugano Conventions or bilateral accords respectively.59 If the court seized first referred to its national law via Art. 7 or Art. 15, the court seized second may only control whether Art. 7 or Art. 15 was applied correctly.60 But exceptionally undermining the fortress of Art. 24 appears justified at least insofar as the court seized first was a non-Member State at the time of seisin.61 No floodgate argument is permissible since the exceptionality is evident.62 If in the situation sketched Art. 19 was not applied and if the law of the court seized second 31 does not contain alike rules on lis pendens, both sets of proceedings would continue threatening to generate irreconcilable judgments.63 The solution promoted by the ECJ also avoids the opposite friction that the court seized second had to declare itself incompetent whilst the recognition of the prospective judgment rendered by the court seized first was not guaranteed.64 However, in the latter scenario one should not omit purposefully and not even for the sake of the argument the possibility of a recognition and enforcement under national law.65 Generally, the only half-way feasible alternative would be to treat the courts seized first as being located in a non-Member State generally.66 A tiny, but obtrusive detail still needs to be clarified: According to which yardsticks shall be 32 ascertained as to whether proceedings were instituted before or after the relevant date? According to the new yardsticks (in particular Art. 16) or to the old ones, i.e. by the national law of each forum concerned respectively67? It may be submitted that the former approach 58

59 60

61 62

63

64 65

66 67

Elsbeth Freifrau von Horn v. Kevin Cinnamond (Case C-163/95), (1997] ECR I-5451, I-5475 para. 19; Lapiedra Alcamí, REDI 1998, 2, 213, 214 et seq.; Briggs, (2005) 76 BYIL 641, 660. Plus communautaire que la Cour Advent Capital plc v. EN Ellinas Imports-Exports Ltd. (2005) 2 Lloyd’s Rep. 607 (Q.B.D., Colman J.). Elsbeth Freifrau von Horn v. Kevin Cinnamond (Case C-163/95), (1997] ECR I-5451, I-5477 para. 25. Elsbeth Freifrau von Horn v. Kevin Cinnamond (Case C-163/95), (1997] ECR I-5451, I-5477 para. 25; Gaudemet-Tallon, RCDIP 87 (1998), 113, 116; Staudinger, in: Rauscher, Art. 66 Brüssel I-VO note 15; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 24. Rauscher, IPRax 1999, 80, 82. Adolphsen, ZZP Int. 3 (1998), 239, 245; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 24. Rauscher, IPRax 1999, 80 et seq.; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 25. Droz n°. 340; Lagarde, RCDIP 67 (1978), 374; Rauscher, IPRax 1999, 80, 81. Adolphsen, ZZP Int. 3 (1998), 239, 243; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 25. Adolphsen, ZZP Int. 3 (1998), 239, 243. To this avail Rolf Wagner, ZIP 1994, 81, 82; Staudinger, in: Rauscher, Art. 66 Brüssel I-VO note 2.

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ought to be preferred since it augments uniformity and is the more modern approach more in line and in tune with the Regulation.68 Generally, intertemporal conflict rules opt for applying the lex praesens where possible, insofar allowing the lex praesens to define its own scope of application.69 Furthermore, this has the additional advantage of comparative simplicity compared to the alternative that the old yardsticks would be applied where the question is whether the proceedings were instituted before the entry into force of the Regulation, and the new ones where the question is whether the proceedings were instituted after that date.70 If Art. 16 is to be preferred in the context of (1), it should be consequent and consistent if it is applied in the akin context too, the more since once again issues of the institution of proceedings are at stake and a uniform answer as to how to measure this aspect is clearly preferential.71 VII. Accession of ten new Member States on 1 May 2004 33 With regard to the ten new Member States having acceded to the EU on 1 May 2004, no

problems arise: The date of application of the Brussels IIbis Regulation is 1 March 2005 and thus later than 1 May 2004.72 Insofar no difference should be made between application of the Regulation in the old and in the new Member States.73 Only for the limited purposes of the original Brussels II Regulation 1 May 2004 became the relevant date of application with regard to the new Member States.74 VIII. Accession of Bulgaria and Romania on 1 January 2007 and of Croatia on 1 January 2013 34 The case is different with Bulgaria and Romania who have acceded to the EU on 1 January

2007, and Croatia who did so as of 1 January 2013. These dates are later than 1 March 2005. Hence, the reasoning just put forward can not apply. The most pragmatic approach would be simply to substitute the date of 1 March 2005 with the date of 1 January 2007 and 1 January 2013 respectively and to apply Art. 64 with this modification insofar as the case relates to Bulgaria, Romania, or Croatia.75 At least simplicity supports this for it avoids the necessity for just another different solution in the field of rules of transition. A mere literal reading should be ruled out for its evidently absurd results.76 Since the original drafting of 68

69

70 71 72 73 74

75

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To the same result Heß, IPRax 2004, 374, 375; Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. Heß, Intertemporales Privatrecht (1998) p. 340; Heß, IPRax 2004, 374, 375; Mankowski, in: Magnus/ Mankowski, Art. 66 Brussels I Regulation note 26. Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. Mankowski, in: Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. See Heß, IPRax 2004, 374. Not with the utmost precision OGH ZfRV 2007, 238 LS = ZfRV-LS 2007/42. See OGH ÖJZ 2005, 566; OGH ZfRV 2005, 157; OGH ZfRV 2007, 238 LS = ZfRV-LS 2007/42; Advent Capital plc v. EN Ellinas Imports-Exports Ltd. (2005) 2 Lloyd’s Rep. 607 (Q.B.D., Colman J.); Heß, IPRax 2004, 374; Jayme/Kohler, IPRax 2004, 481, 485. AD v. CD and AD (2008) 1 FLR 1003, 1011 (C.A., ct. judgm. delivered by Thorpe L.J.); Kaller, iFamZ 2007, 168; Kaller-Pröll, in: Fasching/Konecny, Art. 64 notes 11, 43; Großerichter, in: Althammer, Art. 64 note 16; Rauscher, in: Rauscher, Art. 64 note 3; see also Giorgos Michalias v. Christina A. Ioannou-Michalia (Case C-312/09), ECLI:EU:C:2010:357.

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the Regulation did not cater for the admission of new Member States and the respective problem has not been addressed in the accession documents a purposive reading is required.77 IX. Future accessions to the EU With further countries (in particular Croatia, Iceland, and Turkey) in the offing, looking 35 forward to becoming Member States of the EU (with whatever prospects of success), future accessions have a certain probability. The extent to which Art. 64 will be declared applicable to deal with the entry into force of the Brussels I Regulation in relation to such future Member States will depend on the conditions precedent as spelled out in the respective Acts of Accession. Nevertheless, it appears to be a rather safe bet to predict that Art. 64 will be declared applicable mutatis mutandis respectively if the EU legislator takes care of the issue at all.

Chapter VII: Final Provisions Article 65: Review No later than 1 January 2012, and every five years thereafter, the Commission shall present to the European Parliament, to the Council and to the European Economic and Social Committee a report on the application of this Regulation on the basis of information supplied by the Member States. The report shall be accompanied if need be by proposals for adaptations.

Pursuant to Art. 211 EC Treaty the Commission is obliged to monitor, survey and control 1 the application of Community law in the Member States and to adopt measures for the effective implementation of Community law. This general obligation is in concreto mirrored in Art. 65 with particular regard to the Brussels IIbis Regulation as it is in Art. 73 Brussels I Regulation with particular regard to the Brussels I Regulation.1 Unlike treaties and conventions the accession of new Member States does not provide for an 2 opportunity for prolonged negotiations as to the substance of the Regulation bearing in mind that the acquis communautaire is extended to new Member States tel quel, hence the duty to review in some part substitutes for such missing opportunity.2 Until the beginning of 2012 the Commission had to present a report on the application of 3 the Regulation in the Member States. Addressees of this report are the European Parliament, the Council and the Economic and Social Committee. If necessary, i.e. if major difficulties or 76 77 1 2

See AD v. CD and AD (2008) 1 FLR 1003, 1013 (C.A., ct. judgm. delivered by Thorpe L.J.). AD v. CD and AD (2008) 1 FLR 1003, 1013 (C.A., ct. judgm. delivered by Thorpe L.J.). Commission Proposal COM (1999) 348 final p. 29. Rauscher, in: Rauscher, Art. 43 Brüssel II-VO note 1.

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divergences in the application of single provisions of the Regulation have arisen and can be evidenced by the report, the Commission shall propose appropriate adaptations to the provisions in question and shall thus initiate law reform. 4 The predecessor to the present Art. 65 was Art. 43 Brussels II Regulation which urged upon

the Commission to present a report not later than March 1, 2006. With the Brussels II Regulation being repealed by virtue of Art. 71 (1) this early date for presenting a report appeared to vanish. Henceforth, the first report to be presented should have been scheduled for January 1, 2012. In fact, the Commission complied with its obligation under Art. 65 only per 15 April 2014 when it issued the respective Report.3 5 In one regard Art. 65 is better phrased and more aptly conceived than Art. 73 Brussels I

Regulation4 insofar as it provides for a repeat report every five years. The Commission is called upon to follow up developments and to monitor the information gained from the Member States. 6 In another regard Art. 73 is doubtable: The first clause appears to limit the base for the report

to be presented by the Commission on information supplied by the Member States. This appears unduly restrictive insofar as it at first sight prevents the Commission from using other sources (as for e.g. the Scientific Service of the ECJ) and from investigating on its own motion. A like restriction was not contained in Art. 43 Brussels II Regulation. Perhaps the best way to handle Art. 73 would be to apply it not too verbally and simply to ignore the apparent restriction since gathering information on which the report is based is only an informal and auxiliary means to an informal goal. Article 66: Member States with two or more legal systems With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units: (a) any reference to habitual residence in that Member State shall refer to habitual residence in a territorial unit; (b) any reference to nationality, or in the case of the United Kingdom “domicile”, shall refer to the territorial unit designated by the law of that State; (c) any reference to the authority of a Member State shall refer to the authority of a territorial unit within that State which is concerned; (d) any reference to the rules of the requested Member State shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked.

3

4

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Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, COM (2014) 225 final. For a criticism of Art. 73 Brussels I Regulation see Mankowski, in: Magnus/Mankowski, Art. 73 Brussels I Regulation note 2.

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I. General considerations Like most Hague Conventions but quite unlike the Brussels I Regulation Art. 66 expressly 1 deals with the event that two or more systems of law or sets of rules concerning matters falling in the scope of the Brussels IIbis Regulation exist within a single Member State as Art. 41 Brussels II Regulation has done before. This is a quite extraordinary feature for an international instrument located in the realm of international procedural law, not of private international law. Procedural rules mainly are federal law, unified and harmonised even in States subdivided in a number of legal systems. Hence, Art. 66 only becomes operative where the different territorial units within a Member State have different procedural rules.1 Differences only as to substantive law or conflicts law do not matter.2 The concrete role model was provided by Art. 47 Hague Children Protection Convention3 2 on which the present provision still is modelled.4 From the criteria listed in Art. 47 Hague Children Protection Convention only those were transferred into the realm of Art. 66 which also featured amongst the connection factors employed by the jurisdictional factors of the Brussels IIbis regime.5 Nevertheless, some Member States present such subdivision into two or more territorial 3 units. The most prominent example is the United Kingdom with its subdivision into England, Scotland, Wales and Northern Ireland.6 A federal structure is not required as this example illustrates, nor sufficient as the example of the Federal Republic of Germany with its sixteen countries, but without interlocal conflicts demonstrates. Whether Art. 67 is relevant for Spain depends on whether the interforal procedural rules of the regional laws become operative in the material scope of the Brussels IIbis Regulation.7 In any event, only a territorial subdivision is relevant for the purposes of Art. 66, not a 4 personal or religious one (if that is ever to occur in any Member State of the EU). Only interlocal conflicts matter, not interpersonal or interreligious ones. II. Deciding the interlocal conflict 1. Autonomous decision by Art. 67 itself Generally, Art. 66 reserves the casting vote for itself. But for (b), Art. 66 itself determines 5 which territorial unit shall be deemed the relevant one. But for (b), it does not make reference to the interlocal conflicts rules of the Member State concerned. Instead of employing such a reference it extends the connecting factor chosen for international jurisdiction into

1 2 3

4 5 6 7

Report Borrás para. 126; Rauscher, in: Rauscher, Art. 66 note 2. Großerichter, in: Althammer, Art. 66 note 2. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children. Report Borrás para. 126; Rauscher, in: Rauscher, Art. 66 note 1. Rauscher, in: Rauscher, Art. 66 note 1. Schlosser, in: Schlosser/Hess, Art. 66 note 1; Rauscher, in: Rauscher, Art. 66 note 2. Rauscher, in: Rauscher, Art. 66 note 2.

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the interlocal conflict. This is an autonomous decision by Community law deplacing anything the interlocal conflict rules of the respective State might have in place. 6 This approach is the correct and easiest one for localised connecting factors. Accordingly, it

is employed for habitual residence (a), authorities (c) and rules of law in a given procedure (d). Each of these connecting factors inherently bears a relation not only to a state as such, but also to a place. Factual relations to a place are appropriate means to determine and identify by localising this very place which territorial unit within a Member State is the relevant one. 2. Exception in the event of nationality as the relevant connecting factor, (b) 7 (b) is the exception since nationality by its very definition is a concept related to a State in its

entirety, the territorial units not having own citizenships or nationalities. Therefore the Regulation cannot extend nationality (as the connecting factor chosen for international jurisdiction) into the interlocal conflict. Nationality is not an appropriate tie-breaker for interlocal conflicts. Accordingly, the interlocal conflicts rules for procedural matters as applicable in the respective Member State are called upon. (b) in fine expressly refers to the territorial unit designated by the law of that State.8 This is a technique quite distinguished from that employed in the other litterae. It arises from practical need since an extension of the connecting factor chosen is not possible in the case of nationality or domicile.9 8 Domicile is not problematic since the United Kingdom traditionally links domicile to one of

its jurisdictions.10 Consequentially, a husband domiciled in Scotland according to British interlocal rules is domiciled in Scotland for the purposes of the Regulation, too. If his wife is domiciled in England, they do not have a common domicile for the purposes of Art. 3 (1) (b).11 9 Nationality has to be substituted with something else unless the single jurisdictions within

the respective Member State extraordinarily can award own nationalities to their citizens.12 Else national conflict rules for interlocal conflicts might opt for any connecting factor they deem appropriate (for instance habitual residence or domicile) without Art. 66 or any other rule of the Brussels IIbis Regulation interfering. Article 67: Information on central authorities and languages accepted The Member States shall communicate to the Commission within three months following the entry into force of this Regulation: (a) the names, addresses and means of communication for the central authorities designated pursuant to Article 53; 8 9

10 11 12

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Emphasis added. Contra Rauscher, in: Rauscher, Art. 66 note 4 who apparently attempts to ignore the final parts of the wording as well as the underlying ratio. Rauscher, in: Rauscher, Art. 66 note 4. Rauscher, in: Rauscher, Art. 66 note 4 fn. 6. Cf. Rauscher, in: Rauscher, Art. 66 note 4.

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(b) the languages accepted for communications to central authorities pursuant to Article 57 (2); and (c) the languages accepted for the certificate concerning rights of access pursuant to Article 45 (2). The Member States shall communicate to the Commission any changes to this information. The Commission shall make this information publicly available. I. II. III. IV.

Ratio legis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . Object of communication . . . . . . . . . . . . . . . . . . Means of gathering the relevant information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

V. Means of communication . . . . . . . . . . . . . . . . . . 8 VI. Changes to information . . . . . . . . . . . . . . . . . . . . 9 VII. Current list of information . . . . . . . . . . . . . . . . 12

6

I. Ratio legis Art. 67 deals with an informal area the practical relevance of which can not possibly be 1 overestimated: Where should courts and practitioners turn to in order to gather information about the central authorities in other Member States and the language criteria employed by them? That might appear to be small change but the turn-out of an entire case and the answer to the question whether to co-operate might depend on it heavily. It would be inefficient to let each court carry out such search for information unassisted. The relevant data do not change that much over the times and they cry out for central collection. The organ called upon for taking centralised measures is the Commission as the repositary of the Regulation. Accordingly, Art. 67 proceeds. II. Legislative history Art. 67 does not have a direct predecessor in the Brussels II Regulation. This should fall short 2 of being a surprise if one considers correctly that the areas covered, namely central authorities concerning cases of parental responsibility, were outside the material scope of the Brussels II Regulation which did not deal with parental authority on a general basis. Equally it is small wonder that Art. 67 does not even find a direct counterpart in the Brussels I Regulation although the general idea and concept is borrowed from Art. 74 Brussels I Regulation.1 III. Object of communication The prescribed objects of communication are threefold:2 3 (a) the names, addresses and means of communication for the central authorities designated pursuant to Article 53; (b)the languages accepted for communications to central authorities pursuant to Article 57 (2); and

1 2

Kaller-Pröll, in: Fasching/Konecny, Art. 67 note 1. For details on the listed subjects see the commentaries on Arts. 53, 57 and 45 respectively.

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(c) the languages accepted for the certificate concerning rights of access pursuant to Article 45 (2). 4 (a) conveys basic data without which a proper communication with the central authority of

any Member State would be not feasible in practice. 5 (b) and (c) relate to options the Member States have and can exercise. Member States have in

effect to communicate as to whether they exercise any options open to them, and which languages they regard as their respective official languages. For instance, Germany has exercised its discretion in §§ 3; 4 IntFamRVfG (but for incoming certificates3). IV. Means of gathering the relevant information 6 The Commission is the compiling and collection organisation eventually responsible for

making the information publicly available. General public shall be assured that it has only to inspect the information published by the Commission and must not contact information published by the single Member States. 7 The Member States know best how they have organized their respective central authorities

and which languages they are prepared to admit. They have this information immediately available without incurring any additional cost. Hence they are the born cheapest information providers. V. Means of communication 8 The means by which the Commission shall make the information publicly available are the

same as mentioned in the second clause of Art. 68. That the last clause of Art. 67 does mention the Official Journal expressly does not constitute a difference in substance but should be taken as some kind of editorial inconsistency or as a simple lapsus. This might be evidenced by Art. 68 in fine also mentioning “any other appropriate means”. Anyway, the Commission is not prevented from publishing the information gathered under Art. 67 in the Official Journal. This would be the most appropriate way to publicise information. VI. Changes to information 9 Subpara. 2 obliges the Member States to communicate any relevant changes as to the

material data to the Commission. The material available shall be up-to-date. It must be not static, but dynamic following subsequent alterations in the single Member States. In practice, at least some Member States have been rather slow in communicating, though, so that the officially available list might not correctly reflect the latest and current information in the respective Member States.4 10 The Commission is under no duty whatsoever to survey the national laws of the Member

States as to whether the information communicated is still correct, in regular or irregular intervals. It must not invest time and effort in such enterprise. 3 4

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Rauscher, in: Rauscher, Art. 67 note 4. Kaller-Pröll, in: Fasching/Konecny, Art. 67 note 1.

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If a Member State changes the material data but fails to communicate this to the Commis- 11 sion and a court of official body in another Member State acted in good faith relying on the information as published by the Commission the Member State which was not up to its obligation must be treated and must allow to be treated as though the previous data was still correct, i.e. as though the alteration has never taken place. Only the subsequent communication and publication of the alteration will change events and the outcome. VII. Current list of information The current list of information as published by the Commission can be found under http://e 12 c.europa.eu/justice_home/judicialatlasciv/html/rc_docsbisii_en.htm or http://ec.europa.eu/ justice_home/judicialatlasciv/html/rec_brii_centralbody_en.htm or http://ec.europa.eu/jus tice_home/judicialatlasciv/html/recotherinfo_en.htm. It reads as far as it is related to Art. 67: Austria Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Bundesministerium für Justiz Museumstrasse 7 Abteilung I 10 1016 Wien Tel: +43–1 52152/2134 Fax: +43–1 52152/2829 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): German. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): German. Belgium Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Service public federal Justice, Boulevard de Waterloo, 115 1000 Bruxelles Federale Overheidsdienst Justitie, Waterloolaan 115, 1000 Brussel Tel: +32 2 542 67 00 Fax: +32 2 542 70 06 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): English, French, German, Dutch Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): the certificate must be accompanied by a translation in the official language of the place of enforcement. This language (French, Dutch or German as the case may be) is specified in column II of the list (Manual) of Belgian administrative districts and judicial districts of courts of first instance annexed to the “Taking of evidence” Regulation (F for French, N for Dutch and D for German).

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Bulgaria Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53 are: Ministry of Justice International Legal Protection for Children and International Adoptions Directorate Tel: (+359 2) 9237302 E-mail: [email protected] Fax: (+359 2) 9871557 Address: ul. Slavyanska St 1, 1040, Sofia, Bulgaria (for all questions covered by the Regulation connected with the abduction and placement of children (Article 56)) International Legal Cooperation and European Affairs Directorate Tel.: (+359 2) 9237413 Fax: (+359 2) 9809223 Address: ul. Slavyanska St 1, 1040, Sofia, Bulgaria (for all questions covered by the Regulation not connected with the abduction and placement of children (Article 56)) Article 67 (b) The languages accepted for communications to the central authorities pursuant to Article 57 (2) are: Bulgarian, English and French. Article 67 (c) The languages accepted for the certificate concerning rights of access pursuant to Article 45 (2) are: Bulgarian, English and French. Cyprus Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministry of Justice and Public Order International Legal Cooperation Unit 125 avenue Athalassas Dasoupoli 1461, Leucosia Cyprus Contact: International Legal Cooperation Unit Ministry of Justice and Public Order Tel.: +357 22 805 928 Fax: +357 22 518 328 E-mail: [email protected] Ioanna Anastasiadou Administrative Officer International Legal Cooperation Unit Ministry of Justice and Public Order Tel.: +357 22 805 932 Fax: +357 22 518 328 E-Mail: [email protected]

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Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): The languages accepted pursuant to Articles 57 (2) and 45 (2) are the official languages of the Republic of Cyprus – Greek and Turkish – plus English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2):. The languages accepted pursuant to Articles 57 (2) and 45 (2) are the official languages of the Republic of Cyprus – Greek and Turkish – plus English. Czech Republic Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Úřad pro mezinárodně právní ochranu dětí (Office for International Legal Protection of Children), Benešova 22, CZ – 602 00 BRNO Tel.: + 420 542 215 522, + 420 542 215 443 Fax: + 420 542 212 836, + 420 542 217 900 Email: [email protected] Website: www.umpod.cz Contact persons: Zdeněk Kapitán, Director Markéta Nováková, Deputy Director Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Czech, English, German, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Czech, English, German. Estonia Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Justiitsministeerium Tõnismägi 5a 15191 Tallinn Tel: +372 6 208 100 Fax: +372 6 208 109 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Estonian, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Estonian, English.

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Finland Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Oikeusministeriö Kansainvälinen yksikkö PL 25 00023 Valtioneuvosto Tel: +358 9 1606 7628 Fax: +358 9 1606 7524 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): English, Finnish, Swedish. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): English, Finnish, Swedish. France Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministère de la Justice, Direction des Affaires Civiles et du Sceau Bureau de l’entraide civile et commerciale internationale (D3) 13 place Vendôme 75042 Paris Cedex 01 Adresse des bureaux : 5, boulevard de la Madeleine Paris 1 er (fonctions générales et coopération dans le cadre des affaires spécifiques à la responsabilité parentale – Articles 54 et 55). Tel: +33 1 44 77 61 05 Fax: +33 1 44 77 61 22 E-Mail: [email protected] Ministère de la Justice Direction de la Protection Judiciaire de la Jeunesse Bureau des affaires judiciaires et de la législation 13, place Vendôme, 75042 Paris Cedex 01 Adresse des bureaux: 251, rue Saint Honoré 1er (placement de l’enfant – Article 56) Tel: +33 (01) 44 77 69 02 Fax: +33(01) 44 77 25 78 E-Mail: [email protected] [email protected] [email protected] [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): English, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): English, French.

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Germany Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Bundesamt für Justiz Zentrale Behörde – Adenauerallee 99–103 53113 Bonn; Tel: +49 228 410 5212 Fax: +49 228 410 5401 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): German. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): German. Greece Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Υπουργείο ΔικαιοσΎνης Τμήμα ΔιεθνοΎς Δικαστικής Συνεργασίας σε Αστικές Υποθέσεις κα Αργυρώ Ελευθεριάδου κ. ΘεΌφιλος Τσαγρής Μεσογείων 96 11527 Αθήνα Tel: (+30) 210 7767321 Fax: (+30) 210 7767499 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Greek, English, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Greek, English, French. Hungary Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ifjúsági, Családügyi, Szociális és Esélyegyenlőségi Minisztérium 1054 Budapest, Akadémia u. 3. (all matters under the Regulation except for child abduction cases) Telephone: +36 1 312 7285 Fax: +36 1 312 7021 E-Mail: [email protected] Jogellenes gyermekelvitellel kapcsolatos ügyekben: az Igazságügyi Minisztérium 1055 Budapest, Kossuth tér 4. (for child abduction cases) Telephone: +36 1 441 3110 Fax: +36 1 441 3112 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Hungarian, English, German, French.

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Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Hungarian, English, German, French. Ireland Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministry for Justice, Equality and Law Reform Department of Justice, Equality and Law Reform Bishop’s Square Redmond Hill Dublin 2 Tel: +353 1 4790200 Fax: +3531 4790201 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Irish and/or English, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): English and/or Irish. Italy Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Autorità Centrale per l’intero territorio nazionale è il Dipartimento per la Giustizia Minorile Via Giulia 131 00187 Roma Tel: +39 06 681881 Fax: +39 06 68807087 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Italian, French, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Italian, French, English. Latvia Article 67 (a) Names, addresses and means of communication for the central authorities designated pursuant to Article 53: The Ministry of Justice of the Republic of Latvia Brīvības bulvāris 36 Rīga, LV – 1536 Latvia

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Telephone: +371 67036836 Fax: +371 67036852 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Latvian, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Latvian, English. Lithuania Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministry of Justice of the Republic of Lithuania Gedimino ave. 30/1 LT – 01104 Vilnius Tel: +370 5 2662933 Fax: +370 5 2625940 Ministry of Social Security and Labour A. Vivulskio str., 11 LT – 03610 Vilnius Tel: +370 5 266 42 01 Fax: +370 5 260 38 13 Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Lithuanian, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Lithuanian. Luxembourg Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Parquet Général Cité Judiciaire, Bâtiment CR Plateau du Saint-Esprit L-2080 Luxembourg Tel: +352 47 59 81/336 Fax: +352 47 05 50 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): French, English, German. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): French, English, German.

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Malta Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: The Director Department for Social Welfare Standards Ministry for the Family and Social Solidarity Bugeia Institute St Joseph High Road Sta Venera – MALTA Tel: +356 21 441311/21480130 Fax: +356 21 490468 Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Maltese, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Maltese, English. Netherlands Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: The Department Legal and International Affairs of the Direction Legal Youth Policy of the Ministry of Justice Schedeldoekshaven 100 Postbus 20301 2500 ’s-Gravenhage Tel: +31 70 370 48 93 Fax: +31 70 370 75 07 Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Dutch, English, German, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Dutch, English, German. Poland Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministerstwo Sprawiedliwości Departament Wspólpracy Międzynarodowej i Prawa Europejskiego Al. Ujazdowskie 11 00–950 Warszawa Tel/fax: +48 22 628 09 49

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Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Polish, German, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Polish. Portugal Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Direcção-Geral de Reinserção Social Autoridade Central Portuguesa Avenida Almirante Reis, 72 1150–020 Lisboa Tel: +351 21 114 25 00 Fax: +351 21 317 61 71 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Portuguese, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Portuguese, English. Romania Article 67 (a) The Ministry of Justice is the central Romanian authority (Article 3 of Article I3 of Law No. 191/2007 approving Emergency Government Ordinance No. 119/2006 on measures necessary to implement certain Community Regulations from the date of the accession of Romania to the European Union). Ministerul Justiţiei şi Libertăţilor Cetăţeneşti Direcţia Drept Internaţional şi Tratate Serviciul Cooperare judiciară internaţională în materie civilă Strada Apollodor 17, Sector 5, Bucureşti, Cod 050741 Tel: +40372041077, +403742041078 (cabinet director) Tel: +40372041083, +40372041217, +40372041218 (Serviciul Cooperare judiciară internaţională în materie civilă şi comercială) Fax: +40.37204 1079 E-mail: [email protected] Article 67 (b) Romania accepts Romanian, English and French as the language to be used for the certificate for return of or access to children and for communications to the central authorities. Article 67 (c) Romania accepts Romanian, English and French as the language to be used for the certificate for return of or access to children and for communications to the central authorities.

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Slovakia Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministerstvo spravodlivosti Slovenskej republiky Ţupné námestie 13 813 11 Bratislava (Article 55 c) Tel: +421 2 59 353 111 Fax: +421 2 59 353 600 Web: www.justice.gov.sk Centrum pre medzinárodnoprávnu ochranu detí a mládeže Špitálska 8 P.O. Box 57 814 99 Bratislava (Article 55 a) b) d) e) and Article 56) Telephone: +421 2 20 46 32 08 Fax: +421 2 20 46 32 58 E-Mail: [email protected] Web: www.cipc.sk Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Slovak, English, French (art 53 c); Slovak, English (art 55 d); Slovak, English, German (art 55 a) b) e)). Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Slovak. Slovenia Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Ministrstvo za delo, druţino in socialne zadeve Kotnikova 5 1000 Ljubljana Tel: +386 (0)1 478 34 68 Fax: +386 (0)1 478 34 80 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Slovene, English. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Slovene. Spain Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Dirección General de Cooperación Jurídica Internacional del Ministerio de Justicia Servicio de Convenios

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San Bernardo 62 28015 Madrid Tel: +34 91 3904437/+34 91 3904273 Fax: +34 91 3902383 E-Mail: [email protected] [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): Spanish, English, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): Spanish. Sweden Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: Utrikesdepartementet Enheten för konsulära och civilrättsliga ärenden (Department for Consular Affairs and Civil Law) S- 103 39 Stockholm Tel: +46 (8) 405 1000 (växel)/+46 (8) 405 5001 (Telefon vid nödsituationer annan tid än kontorstid) Fax: +46 (8) 723 1176 E-Mail: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): English, Swedish. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): English, Swedish. United Kingdom Article 67 (a) The names, addresses and means of communication for the central authorities designated pursuant to Article 53: (England & Wales) The International Child Abduction and Contact Unit 81 Chancery Lane London WC2A 1DD Tel: +44(0) 20 79 11 70 45/+44(0)79117047/+44(0)2079117237 Fax: +44(0) 20 7911 7248 (Scotland) Scottish Government EU & International Law Branch St Andrew’s House (2nd floor West) Regent Road Edinburgh EH1 3DG Telephone: +44 131 244 4827/4832

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Fax: +44 131 244 4848 E-Mail: [email protected] (Northern Ireland) Civil Policy Division Northern Ireland Court Service 5th Floor Laganside House 23–27 Oxford Street Belfast BT1 3LA Tel: +44 28 9041 2910 Fax: +44 28 9072 8944 Email: [email protected] Article 67 (b) The languages accepted for communications to central authorities pursuant to Article 57 (2): English, French. Article 67 (c) The languages accepted for the certificate concerning rights of access and return of the child pursuant to Article 45 (2): English, French. For Croatia the names, addresses and means of communication for the central authorities designated pursuant to Article 53 are:5 Ministry of Social Policy and Youth Savska cesta 66 1000 Zagreb Tel: +385 1 555 7111 Fax: +385 1 555 7222 E-Mail: [email protected] 13 Additional information helpful in child abduction cases might be gathered via the home-

page of the Hague Conference for Private International Law under http://www.hcch.net/ind ex_en.php?act=authorities.listing.6 Yet it ought to be stressed that this does not form part of the EU judicial system and is not in any way referred to in Art. 67. The information available from The Hague might in practice be more up-to-date than that contained in the EU’s Judicial Atlas, though.7 The Central Authorities under the Hague system are presumed to be identical with those under the EU system.8 Article 68: Information relating to courts and redress procedures The Member States shall notify to the Commission the lists of courts and redress procedures referred to in Articles 21, 29, 33 and 34 and any amendments thereto. The Commission shall update this information and make it publicly available through the publication in the Official Journal of the European Union and any other appropriate means.

5 6 7 8

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https://e-justice.europa.eu/fileDownload.d0?id=b8cb99ae-78a6-44fa-8979-28da939cc9aa. Kaller-Pröll, in: Fasching/Konecny, Annex to Art. 67. Kaller-Pröll, in: Fasching/Konecny, Art. 67 note 1. Kaller-Pröll, in: Fasching/Konecny, Art. 67 note 1.

November 2016

Chapter VII: Final Provisions

Article 68

Art. 68 is the direct successor to Art. 44 (1) Brussels II Regulation re-implemented without 1 any changes as to substance but only renumbering the rules to which reference is made (and replacing “Official Journal of the European Community” with the now current terminus technicus “Official Journal of the European Union”). It acknowledges that it is for the Member States to determine which courts will have jurisdiction to hear the different types of proceedings to which the Brussels IIbis Regulation applies and in which courts certain applications expressly provided for under the Brussels IIbis Regulation may be brought.1 Under Arts. 21; 29; 33; 34 reference is made to specific courts and to specific redress 2 procedures to be nominated by national law. Insofar the Member State ought to nominate both such courts and the procedures envisaged under their respective law. It is neither in the competence nor in the intention of the EU organs to do so. In the next step, the Member States have to convey the respective information to the Commission, the latter acting as the “repositary” of the Brussels IIbis Regulation. The Commission serves as a centralised partner in communication. Centralised collection and publication of the relevant data is far better suited than the Member States issuing the information relating to their respective legal system step by step and singled out. General public only has to monitor the Community publications. Ordinarily, the Commission will publish the information collected from time to time in the Official Journal, edition C, and with greater frequences on the websites of the General Directorate Home and Justice. The technique employed is more informal and less formal than its counterpart under the 3 Brussels I and II Regulations since under the Brussels IIbis Regulation the respective lists do not constitute Annexes to the very text of the Regulation itself whereas Annexes I to IVof the Brussels I and II Regulations consist of such lists.2 Art. 74 (1) Brussels I Regulation empowers the Commission to alter the Annexes according to the information received, though. In effect, the same result is reached under Art. 68 without a necessity to alter any Annexes formally. The technique chosen has the major advantage from refraining to make the lists of national 4 courts and procedures part of the Regulation itself which in turn would have caused the necessity to issue an Amendment Regulation every time a Member State alters its internal procedural system or switches jurisdiction from one of its courts to another.3 No fear of deficits concerning democratic legitimation may occur since the Commission only reproduces and implements changes brought about by the Member States.4 The list of data collected by the Commission was first published in OJ 2005 C 40/2. The 5 current list of information as published by the Commission can be found under http://ec.eur opa.eu/justice_home/judicialatlasciv/html/pdf/vers_consolide_cr2201_en.pdf or http://ec. europa.eu/justice_home/judicialatlasciv/html/rec_docsbisii_en.htm. It reads as far as it is related to Art. 68:

1

2 3 4

Child and Family Agency v. CJ [2015] IECA 86 [34], [2015] 2 ILRM 412, 427 (CA Ireland, per Finlay Geoghegan J.). Kaller-Pröll, in: Fasching/Konecny, Art. 68 note 1; Großerichter, in: Althammer, Art. 68 note 1. Rauscher, in: Rauscher, Art. 68 note 2. Rauscher, in: Rauscher, Art. 68 note 2.

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Information relating to courts and redress procedures pursuant to Article 68 of 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. The courts and redress procedures notified to the Commission by the Member States after this date and any amendments thereto, will be published later. List 1 The applications provided for by Articles 21 and 29 shall be submitted to the following courts: – in Belgium, the ‘tribunal de première instance’/‘rechtbank van eerste aanleg’/‘erstinstanzliches Gericht’, – in Czech Republic, the ‘okresní soud’ or ‘soudní exekutoř’, – in Germany: in the district of the ‘Kammergericht’ (Berlin), the ‘Familiengericht’, ‘Pankow/Weissensee’; in the districts of the remaining ‘Oberlandesgerichte’, to the ‘Familiengericht’ located at the seat of the respective ‘Oberlandesgericht’, – in Estonia, the ‘maakohus’ or the ‘linnakohus’, – in Greece, the ‘Πρωτοδικείο’. – in Spain, the ‘Juzgado de Primera Instancia’, – in France, the ‘juge aux affaires familiales du tribunal de grande instance’, – in Ireland, the High Court, – in Italy, the ‘Corte d’appello’, – in Cyprus, No. information communicated to the European Commission, – in Latvia, the ‘rajona (pilsētas) tiesa’, – in Lithuania, the ‘Lietuvos apeliacinis teismas’, – in Luxembourg, the presiding Judge of the ‘Tribunal d’arrondissement’, – in Hungary, No. information communicated to the European Commission, – in Malta, the ‘Prim’ Awla tal-Qorti Civili’ or ‘il-Qorti tal Maġistrati ta’ Għawdex filġurisdizzjoni superjuri tagħha’, – in Netherlands, the ‘voorzieningenrechter van de rechtbank’, – in Austria, the ‘Bezirksgericht’, – in Poland, the ‘Sąd okręgowy’, – in Portugal, the ‘Tribunal de comarca’ or ‘Tribunal de Família e Menores’, – in Slovenia, the ‘okrožno sodišče’, – in Slovakia: (a) the ‘Krajský súd v. Bratislave’ for an application relating to divorce, legal separation or marriage annulment; (b) the ‘Okresný súd’ for the habitual residence of the child or ‘Okresný súd Bratislava I’ when a child has No. habitual residence in the Slovak Republic for an application relating to parental responsibility; – in Finland, the ‘Käräjäoikeus/tingsrätt’, – in Sweden, the ‘Svea hovrätt’, – in United Kingdom: (a) in England and Wales, the High Court of Justice – Principal Registry of the Family Division;

502

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Chapter VII: Final Provisions

Article 68

(b) in Scotland, the Court of Session, Outer House; (c) in Northern Ireland, the High Court of Justice. List 2 The appeals provided for by Article 33 shall be lodged with the courts listed below: – in Belgium: (a) a person applying for a declaration of enforceability may lodge an appeal with the ‘cour d’appel’ or the ‘hof van beroep’; (b) the person against whom enforcement is sought may lodge opposition with the ‘tribunal de première instance’/‘rechtbank van eerste aanleg’/‘erstinstanzliches Gericht’, – in Czech Republic, the ‘okresní soud’, – in Germany, the ‘Oberlandesgericht’, – in Estonia, the ‘ringkonnakohus’ – in Greece, the ‘Εφετείο’, – in Spain, the ‘Audiencia Provincial’, – in France, the ‘Cour d’appel’, – in Ireland, the High Court, – in Italy, the ‘Corte d’appello’, – in Cyprus, No. information communicated to the European Commission, – in Latvia, the ‘apgabaltiesā’, – in Lithuania, the ‘Lietuvos apeliacinis teismas’, – in Luxembourg, the ‘Cour d’appel’, – in Hungary, No. information communicated to the European Commission, – in Malta, the ‘Qorti tal-Appell’ in accordance with the procedure laid down for appeals in the ‘Kodiċi tal-Organizzazzjoni u Proċedura Ċivili – Kap. 12’, – in Netherlands, the ‘rechtbank’, – in Austria, the ‘Bezirksgericht’, – in Poland, the ‘Sąd apelacyjny’, – in Portugal, the ‘Tribunal da Relação’, – in Slovenia, the ‘okrožno sodišče’, – in Slovakia, the ‘Okresný súd’, – in Finland, the ‘Hovioikeus/hovrätt’, – in Sweden, the ‘Svea hovrätt’, – in United Kingdom: (a) in England and Wales, the High Court of Justice – Principal Registry of the Family Division; (b) in Scotland, the Court of Session, Outer House; (c) in Northern Ireland, the High Court of Justice. List 3 The appeals provided for by Article 34 may be brought only: – in Belgium, Greece, Spain, France, Italy, Latvia, Luxembourg, Netherlands, by an appeal in cassation, – in Czech Republic, by a ‘žaloba pro zmatečnost’ and a ‘dovolání’, – in Germany, by a ‘Rechtsbeschwerde’,

Peter Mankowski

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Article 69

– – – – – – – – – – – – –

Brussels IIbis Regulation

in Estonia, by ‘kasaatsioonkaebus’, in Ireland, by an appeal on a point of law to the Supreme Court, in Cyprus, No. information communicated to the European Commission, in Lithuania, by an appeal in cassation to the ‘Lietuvos Aukščiausiasis Teismas’, in Hungary, No. information communicated to the European Commission, in Austria, by a ‘Revisionsrekurs’, in Poland, by an appeal in cassation to the ‘Sąd Najwyższy’, in Portugal, by a ‘recurso restrito à matéria de direito, para o Supremo Tribunal de Justiça’, in Slovenia, ‘pritožba na Vrhovno sodišče Republike Slovenije’, in Slovakia, by a ‘dovolanie’, in Finland, by an appeal to ‘Korkein oikeus/högsta domstolen’, in Sweden, by an appeal to the ‘Högsta domstolen’, in United Kingdom, by a single further appeal on a point of law: (a) in England and Wales, to the Court of Appeal; (b) in Scotland, to the Court of Session, Inner House; (c) in Northern Ireland, to the Northern Ireland Court of Appeal.

6 The website of the European Judicial Network http://ec.europa.eu/civiljustice/index_en.htm

contains additional information about procedures in the single Member States and relevant aspects of national laws plus the relevant parts of EU laws and international treaties. The general idea is to enable the law seeking citizen and potential applicant to file an application in the respective Member State. Yet caution must be advised, and in most instances contacting and instructing a lawyer resident in, and familiar with the law of, the Member State envisaged will be the appropriate and more sensible way of handling matters.5 Article 69: Amendments to the Annexes Any amendments to the standard forms in Annexes I to IV shall be adopted in accordance with the consultative procedure set out in Article 70 (2). 1 Art. 69 – generally like its direct predecessor Art. 44 (2) Brussels II Regulation, but with some

extension compared to actualising and technical adaptation1 – permits the Commission to alter, modify and adapt Annexes I to IV if the consultation process established by Art. 70 (2) is observed. It will be recalled that these Annexes are relating to the following matters: Annex I: Certificates concerning judgments in matrimonial matters; Annex II: Certificates concerning judgments on parental responsibility; Annex III: Certificates concerning judgments on rights of access; Annex IV: Certificates concerning judgments on return of a child.

2 Only Annexes I to IV are referred to and mentioned. The inherent restriction is purposeful

and not fortuitous or accidental. The other two Annexes are not concerned for evident reasons: Annex V contains the comparative table and synopsis for the Brussels II and the 5 1

504

Kaller-Pröll, in: Fasching/Konecny, Art. 68 note 4. Großerichter, in: Althammer, Art. 69 note 1.

November 2016

Chapter VII: Final Provisions

Article 70

Brussels IIbis Regulations which is a permanent feature and not subject to change whereas Annex VI consists of declarations by Sweden and Finland which the Commission has not the power and competence to alter anyway. Art. 69 empowers the Commission to implement adaptation. Such powers were vested in the 3 Commission pursuant to Art. 202 3rd lemma EC Treaty2 (which has not been retained in the TFEU). The formal instrument to be used for concrete alterations is the Commission Regulation.3 Yet the Commission is only entitled to actualise the Regulation and to implement rather technical changes, not to execute fundamental changes.4 Otherwise it would act ultra vires and invade into an area which is preserved for the Council.5 Democratic deficits and shortages inherent in the consultation process under Art. 70 on one hand and the Commission as the implementing power on the other hand should be kept as far at bay as possible.6 It must be remembered and borne in mind that every alteration of the standard forms in Annexes I to IV has direct implications for practical purposes and can alleviate or widen the burden of information necessary to be proven in the enforcement procedure.7 Article 70: Committee 1. The Commission shall be assisted by a committee (committee). 2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply. 3. The committee shall adopt its rules of procedure.

By virtue of (1), the Commission, i.e. the Commission of the European Communitiy, shall be 1 assisted by a committee as far as the Commission has to fulfil functions concerning the Brussels IIbis Regulation. The said committee serves supporting and preparing functions only;1 it does not have the power and competence to decide something (unless the Commission derivatively vests such power in it). It shall render support in particular with regard to the report which the Commission has to present pursuant to Art. 65, or with regard to the updating or technical adjustments of the forms, specimen of which appear in Annexes I to IV, prescribed by Art. 69.2 Art. 69 expressly refers to the advisory procedure contained in (2).

2 3 4

5 6 7 1

2

Layton/Mercer para. 33.004. Layton/Mercer para. 33.004. Staudinger, in: Rauscher, Art. 74 Brüssel I-VO note 2; Mankowski, in: Magnus/Mankowski, Art. 74 Brussels Ibis Regulation note 3. Mankowski, in: Magnus/Mankowski, Art. 74 Brussels Ibis Regulation note 3. See Rauscher, in: Rauscher, Art. 69 note 2. Rauscher, in: Rauscher, Art. 69 note 2. Kropholler/von Hein, Art. 75 EuGVVO note 1; Mankowski, in: Magnus/Mankowski, Art. 75 Brussels Ibis Regulation note 1. Kropholler/von Hein Art. 75 EuGVVO note 1; Staudinger, in: Rauscher, Art. 75 Brüssel I-VO note 1; Mankowski, in: Magnus/Mankowski, Art. 76 Brussels I Regulation note 1.

Peter Mankowski

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Article 70

Brussels IIbis Regulation

2 (2) deals with technicalities and procedural modalities. Articles 3 and 7 of Decision 1999/

468/EC3 read as follows: Article 3: Advisory procedure (1.) The Commission shall be assisted by an advisory committee composed of the representatives of the Member States and chaired by the representative of the Commission. (2.) The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft, within a time-limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote. (3.) The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes. (4.) The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which the opinion has been taken into account. Article 7 (1.) Each committee shall adopt its own rules of procedure on the proposal of its chairman, on the basis of standard rules of procedure which shall be published in the Official Journal of the European Communities.4 Insofar as necessary existing committees shall adapt their rules of procedure to the standard rules of procedure. (2.) The principles and conditions on public access to documents applicable to the Commission shall apply to the committees. (3.) The European Parliament shall be informed by the Commission of committee proceedings on a regular basis. To that end, it shall receive agendas for committee meetings, draft measures submitted to the committees for the implementation of instruments adopted by the procedure provided for by Article 251 of the Treaty, and the results of voting and summary records of the meetings and lists of the authorities and organisations to which the persons designated by the Member States to represent them belong. The European Parliament shall also be kept informed whenever the Commission transmits to the Council measures or proposals for measures to be taken. (4.) The Commission shall, within six months of the date on which this Decision takes effect, publish in the Official Journal of the European Communities, a list of all committees which assist the Commission in the exercise of implementing powers. This list shall specify, in relation to each committee, the basic instrument(s) under which the committee is established. From 2000 onwards, the Commission shall also publish an annual report on the working of committees.

3 (3) obliges the Committee to adopt rules of procedure. The content of such rules and the

procedure how to adopt them are mainly coped with by Art. 7 Decision 1999/468/EC as reprinted supra5.6

3

4

5 6

506

Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ EC 1999 L 184/23. Comment by the author, not official: As of 1 February 2003 the Official Journal of the European Communities has been renamed as Official Journal of the European Union; cf. the respective notice in OJ EC 2003 L 25/1. Supra Art. 70 note 2 (Mankowski). Rauscher, in: Rauscher, Art. 45 Brüssel II-VO note 1.

November 2016

Chapter VII: Final Provisions

Article 71

Article 71: Repeal of Regulation (EC) No. 1347/2000 1. Regulation (EC) No. 1347/2000 shall be repealed as from the date of application of this Regulation. 2. Any reference to Regulation (EC) No. 1347/2000 shall be construed as a reference to this Regulation according to the comparative table in Annex V.

I. Repeal of the Brussels II Regulation, (1) The Brussels IIbis Regulation is a predator. It gobbles up, devours and swallows its prede- 1 cessor, the Brussels II Regulation. Whereas the Brussels I Regulation did not treat the Brussels Convention in this manner, in the case of the Brussels II Regulation the possibility to make it vanish and disappear, to erase it completely is given since it was generated by the same legislator not being a Treaty and since Denmark was not a Member State of the Brussels II Regulation, either. The circle of states which are Member States to both Regulations is identical, and with an EC Regulation not being a treaty a uniform and simultaneous date of entry in force and a uniform and simultaneous date of application are guaranteed for all Member States. Accordingly, (1) opts for a wholesale of repeal of the Brussels II Regulation.1 The technique chosen is alternative to simply amending the Brussels II Regulation. Yet it 2 opens the puzzling topic of terminology: If the Brussels II Regulation had simply been amended the name for the entirety still would have been Brussels II Regulation. By repealing and replacing the Brussels II Regulation, the new Regulation could be called and was called alternately: new Brussels II Regulation, Brussels II Regulation (new), Revised Brussels II Regulation, Brussels IIA Regulation, and Brussels IIbis Regulation. At present, the last denomination, i.e. Brussels IIbis Regulation, appears to be the prevailing one and was thus duly adopted for the purposes of this commentary in its entirety and of its overall title. Nevertheless, there is some space for ambiguity and some cause for misunderstandings and misapprehensions. The clouds are darkened by the fact that differing denominations are prevailing in the different Member States, with German and Austrian writings opting for Brussels IIA, accompanied by some English voices, and Brussels IIbis being preferred in the Romanic countries and the Netherlands, accompanied by the remainder of English voices. At least, (1) should be blamed for the deplorable terminological situation that practitioners 3 have to understand that they have to cope with a Brussels IIbis Regulation whereas a Brussels II Regulation does not exist anymore. To practitioners’ minds (and in particular if the practitioners are not trained in matters of, and familiar with, private international law) this is appealing and disturbing. The situation got even more complex when the Rome III Regulation as a somewhat named uniform EU act dealing with both jurisdiction for, and applicable law to, divorce2 saw the light.

1

2

Quite evidently Art. 71 ratione materiae could not have any direct predecessor in the Brussels II Regulation. See Introduction notes 11–12 (Magnus/Mankowski).

Peter Mankowski

507

Article 72

Brussels IIbis Regulation

4 Attention has to be given to a detail which needs to be duly noticed: The repeal of the

Brussels II Regulation takes effect as of the date of application of the Brussels IIbis Regulation, not as of the date of entry into force of the latter Regulation. This is only consistent with (1) itself becoming effective only as of 1 March 2005 by virtue of Art. 72 (1). Hence, the Brussels II Regulation is repealed as of 1 March 2005 and not as of 1 August 2004. The two Regulations neatly fit together, not leaving any gap for cases after 1 March 2001 to slip through the net woven by the two Regulations combined.3 The Community system as a whole does not suffer from an intertemporal gap.4 II. Alteration of references to the Brussels II Regulation into references to the Brussels IIbis Regulation, (2)

5 Some other legal instruments enacted between the passing of the Brussels II Regulation and

the entry into force of the present Regulation refer to the Brussels II Regulation. This concerns mainly national legal instruments, but could also be relevant for some Community instruments to be identified in case. (2) clarifies that such references shall be understood as references to the Brussels IIbis Regulation.5 This clarification in the Regulation is more practicable than to change all legal instruments referring to the Brussels II Regulation.6 Practitioners however should be reminded that they must be aware that references to the Brussels II Regulation are not what they appear to be at first sight.7 Many surprises might be hidden behind that for practitioners not familiar with international procedural law.8 6 Yet the correction is carrying less weight than the alteration from references to the Brussels

Convention into references to the Brussels I Regulation as contained in Art. 68 (2) Brussels I Regulation: Since the Brussels II Regulation had a far shorter life than the Brussels Convention enjoyed and (in some, rare instances) still enjoys, there are far less instruments referring to the Brussels II Regulation, and the Brussels II Regulation is completely repealed by virtue of (1) whereas the Brussels Convention still is in existence. Furthermore, specific problems with Denmark cannot arise since the Brussels II Regulation was not in force for Denmark, either. Last but not least Annex V offers a considerable service to practitioners for they can look up an official “translation” how the rules of the repealed Regulation fit into the system of the new Regulation. Article 72: Entry into force This Regulation shall enter into force on 1 August 2004. The Regulation shall apply from 1 March 2005, with the exception of Articles 67, 68, 69 and 70, which shall apply from 1 August 2004. This Regulation shall be binding in its entirety and directly applicable in the Member States.

3 4 5 6 7 8

508

Cf. Art. 46 (1) Brussels II Regulation. To the same result if only with different reasoning Großerichter, in: Althammer, Art. 71 note 1. Probably overlooked by Christian Kohler, in: FS Reinhold Geimer (2002), p. 461, 464 et seq. Mankowski, in: Magnus/Mankowski, Art. 68 Brussels I Regulation note 4. Großerichter, in: Althammer, Art. 71 note 2. Mankowski, in: Magnus/Mankowski, Art. 68 Brussels I Regulation note 4.

November 2016

Chapter VII: Final Provisions

Article 72

In order to comply with the requirements established by Art. 254 (2) EC Treaty1 the first 1 clause of Art. 72 asserts as to when the Brussels IIbis Regulation enters into force. The entry into force nevertheless concerned only the original Member States. With regard to the Accession States which will become Member States of the EU only after 1 August 2004, the respective date of entry into force is derived from the point of time when the acquis communautaire entered into force for them respectively, pursuant to the conditions of each act of accession. Hence, the Brussels IIbis Regulation will enter into force for Bulgaria and Romania at latest at the date when they will become Member States of the EU. Future Accession States will follow the same pattern. The ten new Member States which acceded to the EU on 1 May 2004 did not pose any problem since 1 May 2004 is evidently preceding 1 August 2004. For practical purposes it should be recalled that neither the entry into force nor the Regu- 2 lation becoming applicable automatically trigger off application of the Regulation in proceedings already pending on the respective date: Whether the Regulation applies in a concrete case ought to be ascertained by virtue of Art. 64.2 The second clause is a particularity of the Brussels IIbis Regulation not resembling anything in 3 Art. 72 Brussels I Regulation. It distinguishes between the entry in force as such and the date from which onwards the rules of the Brussels IIbis Regulation ought to be applied. With the exception of Arts. 67–70 the latter date for all other rules was 1 March 2005 a mere seven months after the technical entry into force. Only the latter date saw the rules relevant for the general public become effectively applicable.3 Member States should be given time to prepare whereas the Commission had to collect information and to establish the lists mentioned in Arts. 67–70 from the outset. In particular, Art. 67 imposed a duty upon the Member States so that if such duty as complied with, the lists could be compiled and published on 1 March 2005 in order to enable courts to employ the Brussels IIbis Regulation effectively. The third clause declaratorily re-iterates the direct effect of the Regulation. Even without this 4 third clause existing the very same result would necessarily follow from Art. 249 (2) EC Treaty.4 “Member States” has to be read in conjunction with, and in the light of, Art. 1 (3) excluding Denmark, though. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community. Done at Brussels, 27 November 2003. For the Council The President R. Castelli 1

2 3 4

Not Art. 254 (1) 2 EC Treaty as Kropholler/von Hein Art. 76 EuGVVO note 1 assumes since the Brussels IIbis Regulation was passed not in co-adaptation by Council and Parliament but under the procedure by virtue of Art. 76 EC Treaty; see Staudinger, in: Rauscher, Art. 76 Brüssel Ia-VO note 1; Mankowski, in: Magnus/Mankowski, Art. 76 Brussels Ibis Regulation note 1 fn. 1. Rauscher, in: Rauscher, Art. 72 note 1. A-G Kokott, [2007] ECR I-10144, I-10165 para. 63. Staudinger, in: Rauscher, Art. 76 Brüssel Ia-VO note 1; Mankowski, in: Magnus/Mankowski, Art. 76 Brussels Ibis Regulation note 2.

Peter Mankowski

509

Annex I Certificate referred to in Article 39 Concerning Judgments in Matrimonial Matters1 1. Member State of origin 2. Court or authority issuing the certificate 2.1. Name 2.2. Address 2.3. Tel./fax/e-mail 3. Marriage 3.1. Wife 3.1.1. Full name 3.1.2. Address 3.1.3. Country and place of birth 3.1.4. Date of birth 3.2. Husband 3.2.1. Full name 3.2.2. Address 3.2.3. Country and place of birth 3.2.4. Date of birth 3.3. Country, place (where available) and date of marriage 3.3.1. Country of marriage 3.3.2. Place of marriage (where available) 3.3.3. Date of marriage 4. Court which delivered the judgment 4.1. Name of Court 4.2. Place of Court 5. Judgment 5.1. Date 5.2. Reference number 5.3. Type of judgment 5.3.1. Divorce 5.3.2. Marriage annulment 5.3.3. Legal separation 5.4. Was the judgment given in default of appearance? 5.4.1. No 5.4.2. Yes2 6. Names of parties to whom legal aid has been granted

1

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, repealing Regulation (EC) No 1347/2000. Documents referred to in Article 37 (2) must be attached.

Peter Mankowski

511

Annex II

Brussels IIbis Regulation

7. Is the judgment subject to further appeal under the law of the Member State of origin? 7.1. No 7.2. Yes 8. Date of legal effect in the Member State where the judgment was given 8.1. Divorce 8.2. Legal separation Done at …, date … Signature and/or stamp …

Annex II Certificate referred to in Article 39 Concerning Judgments on Parental Responsibility1 1. Member State of origin 2. Court or authority issuing the certificate 2.1. Name 2.2. Address 2.3. Tel./Fax/e-mail 3. Person(s) with rights of access 3.1. Full name 3.2. Address 3.3. Date and place of birth (where available) 4. Holders of parental responsibility other than those mentioned under 32 4.1. 4.1.1. Full name 4.1.2. Address 4.1.3. Date and place of birth (where available) 4.2. 4.2.1. Full Name 4.2.2. Address 4.2.3. Date and place of birth (where available) 4.3. 4.3.1. Full name 4.3.2. Address 4.3.3. Date and place of birth (where available) 5. Court which delivered the judgment 5.1. Name of Court 5.2. Place of Court

1

2

512

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. In cases of joint custody, a person already mentioned under item 3 may also be mentioned under item 4.

November 2016

Brussels IIbis Regulation

Annex II

6. Judgment 6.1. Date 6.2. Reference number 6.3. Was the judgment given in default of appearance? 6.3.1. No 6.3.2. Yes3 7. Children who are covered by the judgment4 7.1. Full name and date of birth 7.2. Full name and date of birth 7.3. Full name and date of birth 7.4. Full name and date of birth 8. Names of parties to whom legal aid has been granted 9. Attestation of enforceability and service 9.1. Is the judgment enforceable according to the law of the Member State of origin? 9.1.1. Yes 9.1.2. No 9.2. Has the judgment been served on the party against whom enforcement is sought? 9.2.1. Yes 9.2.1. Full name of the party 9.2.2. Address 9.2.3. Date of service 9.2.2. No 10. Specific information on judgments on rights of access where “exequatur” is requested under Article 28. This possibility is foreseen in Article 40(2). 10.1. Practical arrangements for exercise of rights of access (to the extent stated in the judgment) 10.1.1. Date and time 10.1.1.1. Start 10.1.1.2. End 10.1.2. Place 10.1.3. Specific obligations on holders of parental responsibility 10.1.4. Specific obligations on the person with right of access 10.1.5. Any restrictions attached to the exercise of rights of access 11. Specific information for judgments on the return of the child in cases where the “exequatur” procedure is requested under Article 28. This possibility is foreseen under Article 40(2). 11.1. The judgment entails the return of the child 11.2. Person to whom the child is to be returned (to the extent stated in the judgment) 11.2.1. Full name 11.2.2.Address Done at …, date … Signature and/or stamp …

3 4

Documents referred to in Article 37 (2) must be attached. If more than four children are covered, use a second form.

Peter Mankowski

513

Annex III

Brussels IIbis Regulation

Annex III Certificate referred to in Article 41(1) Concerning Judgments on Rights of Acces1 1. Member State of origin 2. Court or authority issuing the certificate 2.1. Name 2.2. Address 2.3. Tel./fax/e-mail 3. Person(s) with rights of access 3.1. Full name 3.2. Address 3.3. Date and place of birth (where available) 4. Holders of parental responsibility other than those mentioned under 32,3 4.1. 4.1.1. Full name 4.1.2. Address 4.1.3. Date and place of birth (where available) 4.2. 4.2.1. Full name 4.2.2. Address 4.2.3. Date and place of birth (where available) 4.3. Other 4.3.1. Full name 4.3.2. Address 4.3.3. Date and place of birth (where available) 5. Court which delivered the judgment 5.1. Name of Court 5.2. Place of Court 6. Judgment 6.1. Date 6.2. Reference number 7. Children who are covered by the judgment4 7.1. Full name and date of birth 7.2. Full name and date of birth 7.3. Full name and date of birth 7.4. Full name and date of birth 8. Is the judgment enforceable in the Member State of origin? 8.1. Yes 8.2. No

1

2 3 4

514

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. In cases of joint custody, a person already mentioned under item 3 may also be mentioned in item 4. Please put a cross in the box corresponding to the person against whom the judgment should be enforced. If more than four children are concerned, use a second form.

November 2016

Brussels IIbis Regulation

Annex IV

9. Where the judgment was given in default of appearance, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence, or the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally 10. All parties concerned were given an opportunity to be heard 11. The children were given an opportunity to be heard, unless a hearing was considered inappropriate having regard to their age or degree of maturity 12. Practical arrangements for exercise of rights of access (to the extent stated in the judgment) 12.1. Date and time 12.1.1. Start 12.1.2. End 12.2. Place 12.3. Specific obligations on holders of parental responsibility 12.4. Specific obligations on the person with right of access 12.5. Any restrictions attached to the exercise of rights of access 13. Names of parties to whom legal aid has been granted Done at …, date … Signature and/or stamp …

Annex IV Certificate referred to in Article 42(1) Concerning the Return of the Child1 1. Member State of origin 2. Court or authority issuing the certificate 2.1. Name 2.2. Address 2.3. Tel./fax/e-mail 3. Person to whom the child has to be returned (to the extent stated in the judgment) 3.1. Full name 3.2. Address 3.3. Date and place of birth (where available) 4. Holders of parental responsibility2 4.1. Mother 4.1.1. Full name 4.1.2. Address (where available) 4.1.3. Date and place of birth (where available)

1

2

Council Regulation (EC) No 2201 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. This item is optional.

Peter Mankowski

515

Annex IV

Brussels IIbis Regulation

4.2. Father 4.2.1. Full name 4.2.2. Address (where available) 4.2.3. Date and place of birth (where available) 4.3. Other 4.3.1. Full name 4.3.2. Address (where available) 4.3.3. Date and place of birth (where available) 5. Respondent (where available) 5.1. Full name 5.2. Address (where available) 6. Court which delivered the judgment 6.1. Name of Court 6.2. Place of Court 7. Judgment 7.1. Date 7.2. Reference number 8. Children who are covered by the judgment3 8.1. Full name and date of birth 8.2. Full name and date of birth 8.3. Full name and date of birth 8.4. Full name and date of birth 9. The judgment entails the return of the child 10. Is the judgment enforceable in the Member State of origin? 10.1. Yes 10.2. No 11. The children were given an opportunity to be heard, unless a hearing was considered inappropriate having regard to their age or degree of maturity 12. The parties were given an opportunity to be heard 13. The judgment entails the return of the children and the court has taken into account in issuing its judgment the reasons for and evidence underlying the decision issued pursuant to Article 13 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 14. Where applicable, details of measures taken by courts or authorities to ensure the protection of the child after its return to the Member State of habitual residence 15. Names of parties to whom legal aid has been granted Done at …, date … Signature and/or stamp …

3

516

If more than four children are covered, use a second form.

November 2016

Annex V

Brussels IIbis Regulation

Annex V Comparative Table with Regulation (EC) No 1347/2000 Articles repealed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

Peter Mankowski

Corresponding Articles of new text 1, 2 3 12 4 5 6 7 17 18 16, 19 20 2, 49, 46 21 22, 23 24 25 26 27 28 21, 29 30 31 32 33 34 35 36 50 51 37 39 38 52 59 60, 61 62 63 66 64 65

517

Annex VI Articles repealed 44 45 46 Annex I Annex II Annex III Annex IV Annex V

Brussels IIbis Regulation Corresponding Articles of new text 68, 69 70 72 68 68 68 Annex I Annex II

Annex VI Declarations by Sweden and Finland pursuant to Article 59(2)(a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000. Declaration by Sweden: Pursuant to Article 59(2)(a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000, Sweden hereby declares that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply in full in relations between Sweden and Finland, in place of the rules of the Regulation. Declaration by Finland: Pursuant to Article 59(2)(a) of the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000, Finland hereby declares that the Convention of 6 February 1931 between Finland, Denmark, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply in full in relations between Finland and Sweden, in place of the rules of the Regulation.

518

November 2016

Peter Mankowski

AvB

Angenieux fils aî né and Caisse primaire centrale d’ assurance maladie de la ré gion parisienne v Willy Hakenberg

Meletis Apostolides v David Charles and Linda Elizabeth Orams

Francesco Benincasa v Dentalkit Srl

Banque internationale pour l’ C-306/99 Afrique occidentale SA (BIAO) v Finanzamt fü r Groß unternehmen in Hamburg

AvB

Angenieux v Hackenberg

Apostolides v Orams

Benincasa v Dentalkit Srl

BIAO v Finanzamt fü r Groß unternehmen in Hamburg

C-269/95

C-420/07

13/73

C-489/14

C-523/07

A

A

Case

Name

Short

7 January 2003

3. July 1997

28 April 2009

12 July 1973

6 October 2015

2 April 2009

Date

[2003] ECR I-00001

[1997] ECR I-3767

[2009] ECR I-3571

[1973] ECR 935

ECLI:EU:C:2015:654

[2009] ECR I-2805

Reported in

Intro/89

Intro/5

47/7

3/8

19/1; 19/4; 19/31; 19/ 43; 19/53; 19/66; 19/ 66a

Intro/83; 8/6; 8/11; 20/ 15; 20/17; 20/20; 20/27; 55/5

Quotations

The first number indicates the relevant article, the second number relates to the respective note within the commentary on this article.

Table of Cases European Court of Justice

Table of Cases European Court of Justice

519

520

Re C

Mary Carpenter v Secretary of C-60/00 State for the Home Department

Carron v Federal Republic of Germany

Cartier parfums-lunettes SAS C-1/13 and Axa Corporate Solutions Assurance SA v. Ziegler France SA

de Cavel v de Cavel

Re C

Carpenter v Secretary of State

Carron v Germany

Cartier parfums-lunettes SAS

de Cavel v de Cavel

27 March 1979 6 October 1982

CILFIT v Ministero della Srl CILFIT and Lanificio di Ga- 283/81 Sanità vardo SpA v Ministero della Sanità

27 February 2014

10 July 1986

11 July 2002

27 November 2007

27 November 1984

9 Jabuary 2015

27 February 1997

Date

143/78

198/85

C-435/06

Calzaturificio Brennero s.a.s. v 258/83 Wendel GmbH Schuhproduktion International

C-498/14 PPU

Brennero s.a.s. v Wendel GmbH

Bradbrooke v. Aleksan- David Bradbrooke v. Anna drowicz Aleksandrowicz

Van den Boogaard v Laumen C-220/95

van den Boogaard v Laumen

Case

Name

Short

[1982] ECR 3415

[1979] ECR 1055

ECLI:EU:C:2014:109

[1986] ECR 2437

[2002] ECR I-6279

[2007] ECR I-10141

[1984] ECR 3971

EU:C:2015:3

[1997] ECR I-1147

Reported in

Intro/87; Intro/98; Intro/ 100– 101

1/40; 20/9

19/1; 19/53

30/5

Intro/20

Intro/26; Intro/79– 80; Intro/82; Intro/109; 6/6; 8/6; 20/23; 64/6; 64/12; 64/15; 64/22

34/4

20/1

1/40

Quotations

European Court of Justice Brussels IIbis Regulation

November 2016

Da Costa en Schaake NV Ja- 28– 30/62 cob Meijer NV Hoechst-Holland NV v Netherlands Inland Revenue Administration

É ric Coursier v Fortis Bank SA, C-267/97 Martine Coursier, né e Bellami

Custom Made Commercial 288/92 Ltd. v Stawa Metallbau GmbH

D. and the Kingdom of Sweden v Council of Ministers

Da Costa en Schaake NV v Netherlands Inland Revenue Administration

Coursier v Fortis Bank

Custom Made Commercial Ltd. v Stawa Metallbau GmbH

D. and Sweden v Council of Ministers

Peter Mankowski 5 February 2004

26 September 1996

Danmarks Rederiforen- Danmarks Rederiforening, C-18/02 ing v LO Landsorgani- acting on behalf of DFDS sationen i Sverige Torline A/S v LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjó folk Facket fó r Service och Kommunikation

Data Delecta Aktiebolag v MSL Dynamics

Data Delecta Aktiebolag and C-43/95 Ronny Forsberg v MSL Dynamics Ltd.

4 October 1991

31 May 2001

29 June 1994

29 April 1999

27 March 1963

31 March 1971

Date

van Dalfsen v van Loon B.J. van Dalfsen and others v C-183/90 and Berendsen B. van Loon and T. Berendsen

C-122/99

22/70

Commission v Council

Commission v Council

Case

Name

Short

[1996] ECR I-4661

[2004] ECR I-1417

[1991] ECR I-4743

[2002] ECR I-4319

[1994] ECR I-2913

[1999] ECR I-2543

[1963] ECR 63

[1971] ECR 263

Reported in

51/5

Intro/94; Intro/125

26/5; 27/9; 34/4; 35/14

1/20– 21; 1/32

Intro/5;

28/6

Intro/100

Intro/29; 7/8

Quotations

Table of Cases European Court of Justice

521

522 C-403/09 PPU

C-148/02 C-116/02

Carlos Garcia Avello v É tat Belge

Garcia Avello v É tat Belge

Gasser GmbH v MISAT Erich Gasser GmbH v MISAT Srl Srl

Vasilka Ivanova Gogova v Ilia C-215/15 Dimitorv Iliev

C-292/10

G v Cornelius de Visser

G v de Visser

Gogova v Iliev

C-111/01

Gantner Electronic v Gantner Electronic v Basch Basch Exploitatie Maat- Exploitatie Maatschappij BV schappij

21 October 2015

9 December 2003

2 October 2003

15 March 2012

8 May 2003

27 September 1968

Firma P v Firma K

178/83

15 September 1994

Ferná ndez v Commis- Pedro Magdalena Ferná ndez C-452/93 P sion v Commission oft he European Communities

Firma P v Firma K

23 April 2009

23 December 2009

27 September 1968

Date

Draka NK Cables Ltd. v Draka NK Cables Ltd, AB C-167/08 Omnipol Ltd. Sandvik International, VO Sembodja BV, Parc Healthcare International Ltd v Omnipol Ltd

Jasna Detič ek v Maurizio Sgueglia

Detič ek v Sgueglia

Case 148/84

Name

Deutsche GenossenDeutsche Genossenschaftsschaftsbank v SA Brass- bank v SA Brasserie du Pê erie du Pê cheur. cheur.

Short

ECLI:EU:C:2015:710

[2003] ECR I-14693

[2003] ECR I-11613

ECLI:EU:C:2012:142

[2003] ECR I-4207

[1984] ECR 3033

[1994] ECR I-4295

[2009] ECR I-3477

[2009] ECR I-12193

[1985] ECR 1981

Reported in

1/15, 1/70

Intro/3

Intro/21; 3/15

18/17a

Intro/97; Intro/102

33/23

Intro/83; 8/8

33/9

20/13; 20/20; 20/23

33/9

Quotations

European Court of Justice Brussels IIbis Regulation

November 2016

Peter Mankowski

Elsbeth Freifrau von Horn v Kevin Cinnamond

HSB-Wohnbau GmbH

Freifrau von Horn v Cinnamond

HSB-Wohnbau GmbH

Hubbard v Hamburger Anthony Hubbard (Testamentvollstrecker) v Peter Hamburger

C-145/86

Horst Ludwig Martin Hoffmann v Adelheid Krieg

Hoffmann v Krieg

C-20/92

C-86/00

C-163/95

C-78/95

Health Service Executive v SC C-92/12 PPU and AC

Health Service Executive

Hendrickman v.Magen- Hendrickman and Feyen v. ta Druck & Verlag Magenta Druck & Verlag

David Charles Hayes and C-323/95 Jeannette Karen Hayes v Kronenberger GmbH

Hayes v Kronenberger

C– 168/08

1 July 1993

10 July 2001

9 October 1997

4 February 1988

10 October 1996

26 April 2012

20 March 1997

16 July 2009

22 February 1979

Hadadi v Mesko (Hada- Laszlo Hadadi (Hadady) v dy) Csilla Marta Mesko, married name Hadadi (Hadady)

133/78

Date 13 July 2000

Gourdain v Nadler

Gourdain v Nadler

Case

Group Josi Reinsurance Group Josi Reinsurance Com- C-412/98 Company SA v Univer- pany SA v Universal General sal General Insurance Insurance Company (UGIC) Company (UGIC)

Name

Short

[1993] ECR I-3777

[2001] ECR I-5353

[1997] ECR I-5451

[1988] ECR 645

[1996] ECR I-4943

ECLI:EU:C:2012:255

[1997] ECR I-1711

[2009] ECR I-6871

[2000] ECR I-5925

[1979] ECR 733

Reported in

51/5

Intro/91

64/30

22/10; 23/11; 47/19

26/6

1/15; 33/1; 33/44; 56/26

51/5

3/13; 64/19; 64/21– 24

Intro/ 115; 14/2

26/5

Quotations

Table of Cases European Court of Justice

523

524

Industrial Diamond Supplies v 43/77 Luigi Riva

Industrial Diamond Supplies v Luigi Riva

Kenny Roland Lyckeskog

Marseille Fret SA .v Seatrano Shipping Company Ltd.

Lyckeskog

Marseille Fret SA .v Seatrano Shipping Company Ltd. C-24/02

C-99/00

29/76

Van der Linden v Berufsgen- C-275/94 ossenschaft der Feinmechanik und Elektrotechnik

LTU GmbH v Eurocon- LTU GmbH v Eurocontrol trol

Van der Linden v Berufsgenossenschaft

C-7/98

Gerhard Kö bler v Republik Ö C-224/01 sterreich

Krombach v Bamberski Dieter Krombach v André Bamberski

Kö bler v Republik Ö sterreich

Kleinwort Benson v City Kleinwort Benson Ltd. v City of Glasgow of Glasgow District Council

22 March 2002

4 June 2002

14 October 1976

14 March 1996

28 March 2003

30 September 2003

28 March 1995

5 October 2010

C-400/10 PPU

J. McB. v L. E. C-346/93

6 June 2002

C-80/00

Italian Leather v WECO Italian Leather SpA v WECO Polstermö bel GmbH & Co.

J. McB. v L. E.

6 October 1976

22 November 1977

17 November 2011

Date

Industrie Tessili Italiana Industrie Tessili Italiana Como 12/76 Como v Dunlop AG v Dunlop AG

C-327/10

Hypoteč ní banka a.s. v Udo Mike Lindner

Hypoteč ní banka v Lindner

Case

Name

Short

[2002] ECR I-3383

[2002] ECR I-4839

[1976] ECR 1541

[1996] ECR I-1393

[2000] ECR I-1935

[2003] ECR I-10239

[1995] ECR I-615

[2010] ECR I-8965

[2002] ECR I-4995

[1976] ECR 1473

[1977] ECR 2175

[2011] ECR I-11543

Reported in

Intro/96

Intro/95

26/5

30/4; 30/6; 38/2

11/50; 48/7

Intro/140– 141

Intro/89

8/11, 19/47

47/17

Intro/89

12/40; 27/6; 27/9; 35/7

18/17a

Quotations

European Court of Justice Brussels IIbis Regulation

November 2016

MH v MH

Giorgos Michalias v. Christina C-312/09 A. Ioannou-Michalia

Mario Vicente Micheletti and C-369/90 others v Delegació n del Gobierno en Cantabria

MH v MH

Michalias v. IoannouMichalia

Micheletti

Peter Mankowski 59/85

Netherlands v Reed

23 March 1982

102/81

Nordsee v Nordstern

Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co. KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co. KG

5 June 1997

17 April 1986

13 October 2016

7 July 1992

17 June 2010

22 June 2016

22 December 2010

Date

Nordrhein-Westfalen v Land Nordrhein-Westfalen v C-64/96 and C-65/96 Uecker and Jacquet v Kari Uecker and Vera Jacquet Land Nordrhein-West- v Land Nordrhein-Westfalen falen

The Netherlands v Reed

C-294/15

Mikolajczyk v Czarnecki Edyta Mikolajczyk v Marie Luise Czarnecka and Stefan Czarnecki

C-173/16

C-497/10 PPU

Barbara Mercredi v Richard Chaffe

Mercredi v Chaffe

Case

Name

Short

[1982] ECR 1095

[1997] ECR I-3171

[1986] ECR 1283

ECLI:EU:C:2016:772

[1992] ECR I-4239

ECLI:EU:C:2010:357

ECLI:EU:C:2016:452

[2010] ECR I-14309

Reported in

Intro/92

Intro/21

1/22

1/55

3/15

64/34

16/1; 16/34; 19/1; 19/3

8/10; 19/43c

Quotations

Table of Cases European Court of Justice

525

526

Andrew Owusu v N.B. Jack- C- 281/02 son, trading as ‘ Villa Holidays Bal-Inn Villas’ and Others

PvQ

Bianca Purrucker v Guillermo C-256/09 Vallé s Pé rez

Bianca Purrucker v Guillermo C-296/10 Vallé s Pé rez

C-51/97

PvM

Prism Investments BV v. Jaap C-139/10 Anne van der Meer

C-38/98

Isabelle Peters v Lancray SA

Ré gie Nationale des Usines Renault SA v Maxicar SpA, Orazio Formento

Owusu v Jackson and Others

Peters v Lancray SA

PvM

PvQ

Prism Investments BV

Purrucker v Vallé s Pé rez

Purrucker v Vallé s Pé rez

Renault v Maxicar

Ré union Europé enne Ré union Europé enne SA v SA v Spliethoff‘ s Bev- Spliethoff’ s Bevrachtingsrachtingskantoor BV kantoor BV

C-455/15 PPU

C-507/14

C-305/88

C-129/92

Owens Bank Ltd v Fulvio Bracco und Bracco Industria Chimica SpA

Owens Bank v Bracco

Case

Name

Short

27 October 1998

11 May 2000

9 November 2010

15 July 2010

13 October 2011

19 November 2015

16 July 2015

3 July 1990

1 March 2005

20 January 1994

Date

[1998] ECR I-6511

[2000] ECR I 2973

[2010] ECR I-11163

[2010] ECR I-7353

[2011] ECR I-9511

ECLI:EU:C:2015:763

ECLI:EU:C:2015:512

[1990] ECR I-2725

[2005] ECR I-1383

[1994] ECR I-117

Reported in

Intro/5

22/10; 23/11; 47/7

9/5; 19/1; 19/44; 19/ 44a; 20/5; 59/2

9/5; 20/3; 20/5; 20/9; 20/13; 20/15; 20/26

33/3

24/1

16/1; 16/34; 16/44a

33/35

Intro/5; Intro/115; 12/ 52; 15/3

Intro/5; 37/6

Quotations

European Court of Justice Brussels IIbis Regulation

November 2016

Stephen Austin Saldanha and C-122/96 MTS Securities Corporation v Hiross Holding AG

Saldanha and MTS v Hiross

Peter Mankowski

Volker Sonntag v Hans Wald- C-172/91 mann

Sonntag v Waldmann

Standesamt Stadt Nie- Standesamt Stadt Niebü ll v C-96/04 bü ll v Stefan Grunkin, Stefan Grunkin, Dorothee ReDorothee Regina Paul gina Paul

Socié té d’ informatique (SIS- C-432/93 RO) service ré alisation organisation v Ampersand Software BV

SISRO v Ampersand Software BV

27 April 2006

21 April 1993

11. August 1995

12 July 2005

Schempp v Finanzamt Egon Schempp v Finanzamt Mü nchen V Mü nchen V

C-403/03

13 October 2005

2 October 1997

11 July 2008

Date

Scania SA v Rockinger & Scania Finance France SA v C-522/03 Co. Rockinger Spezialfabrik fü r Anhä ngerkupplungen GmbH & Co.

C-195/08

Inga Rinau

Rinau

Case

Name

Short

[2006] ECR I-03561

[1993] ECR I-1963

[1995] ECR I-2269

[2005] ECR I-6421

[2005] ECR I-8639

[1997] ECR I-5325

[2008] ECR I-5271

Reported in

Intro/21

26/5

34/4

Intro/21

22/33; 23/27

51/5

Intro/6; Intro/8; Intro/ 26; Intro/107; Intro/109; Intro. Arts. 40–45/1, 3 and 5; 40/10; 40/14; 42/ 1; 42/3; 42/13; 42/28; 47/9; 47/12

Quotations

Table of Cases European Court of Justice

527

528

C.H.W. v G.J.H

W. v H.

Zhu, Chen v Secretary of State for the Home Department

C-37/00

25/81

Kunqian Catherine Zhu, Man C-200/02 Lavette Chen v Secretary of State for the Home Department

Weber v Universal Og- Herbert Weber v Universal den Services Ltd Ogden Services Ltd

Gaetano Verdoliva v J.M. Van C-3/05 Der Hoeven B.N.

Verdoliva v Van Der Hoeven B.N.

19 October 2004

27 February 2002

31 March 1982

16 February 2006

17 June 1999

Unibank A/S v Flemming G. Christensen

Unibank A/S v Christensen

C-260/97

17 November 1998

Van Uden Maritime BV Van Uden Maritime BV, trad- C-391/95 v Deco-Line ing as Van Uden Africa Line v Kommanditgesellschaft in Firma Deco-Line and Another

C-159/02

27 April 2004

Date

Turner v Grovit, Harada Gregory Paul Turner v Felix Ltd and Changepoint Fareed Ismail Grovit, Harada SA Ltd and Changepoint SA

Case 29 November 2007

Name

Sundelind Lopez v Mi- Kerstin Sundelind Lopez v C-68/07 guel Enriquen Lopez Miguel Enriquen Lopez Lizazo Lizazo

Short

[2004] ECR I-9925

[2002] ECR I-2013

[1982] ECR 1189

[2006] ECR I-1579

[1999] ECR I-3715

[1998] ECR I-7091

[2004] ECR I-3565

[2007] ECR I-10403

Reported in

Intro/21

Intro/34

20/9

33/35

46/3; 46/9

20/2

Intro/3

Intro/4– 5; Intro/9; Intro/26; Intro/31; Intro/ 109; Intro/116; 6/6; 7/6; 20/8

Quotations

European Court of Justice Brussels IIbis Regulation

November 2016

European Court of Human Rights The first number indicates the relevant article, the second number relates to the respective note within the commentary on this article. ECHR, 2 May 1978, no. 7770/77, DR 14, 175 ECHR Ancel v. Turkey (Application no. 28514/04), 17 February 2009 ECHR Carlson v. Switzerland (Application no. 49492/06), 8 November 2008 ECHR Damnjanović v. Serbia (Application no. 5222/07), 18 November 2008 ECHR Deak v. Romania and the United Kingdom, no. 19055/05, (2008) 47 EHRR 50 ECHR Elsholz v. Germany, [2000] ECHR 2000-VIII 345, no. 25735/94 ECHR Eriksson v. Sweden, 22 June 1989, (Application no. 11373/85) [1989] ECHR 10, Série A 156, no. 71 ECHR Hokkanen v Finland (Application no. 19823/92) (1995) 19 EHRR 139 ECHR H.N. v. Poland (Application no. 77710/01) [2005] ECHR 587 ECHR Iglesias GIL & A.U.I v. Spain, (Application no. 56673/00) [2003] ECHR 206 ECHR Ignaccolo-Zenide v. Romania (Application no. 31679/96) (2001) 31 EHRR 7 ECHR Iosub Caras v. Romania (Application no. 7198/04), (2008) 47 EHRR 35 ECHR Kaleta v. Poland (Application no. 11375/02), 16 December 2008 ECHR Karadžić v. Croatia (Application no. 35030/04) [2005] ECHR 871 ECHR Kosmopoulou v. Greece (Application no. 60457/00) [2004] ECHR 58 ECHR Maire v Portugal (Application no. 48206/99) [2003] ECHR 324 ECHR Marckx v. Belgium 13 June 1979, Series A no. 31, p. 11, FamRZ 1979, 903 ECHR Maumousseau and Washington v. France (Application No 39388/05), 6 December 2007 ECHR Mazurek v. France 1 February 2000 – FamRZ 2000, 1071 ECHR Monory v Hungary & Romania (Application no. 71099/01) [2005] ECHR 209 ECHR Neulinger and Shuruk v. Switzerland (Application no. 41615/ 07), 8 January 2009 ECHR Pellegrini v. Italy, [2001] ECHR 2001-VIII 369, no. 30882/96 ECHR Pla and Puncernau v. Andorra, 13 July 2004, FamRZ 2004, 1467

Peter Mankowski

Intro. Arts. 40–45/6 47/6 47/5 47/10 47/5 23/22 Intro. Arts. 40–45/6; 47/5 47/1; 47/5 47/1; 47/5–6; 47/16 47/1; 47/5 47/5–6 47/5 47/5 47/5 47/5; 47/17 47/10 47/1; 47/5; 47/16 Intro/16 47/6–7 Intro/16 47/5 47/7 22/22 Intro/16

529

European Court of Human Rights ECHR P.P. v. Poland (Application no. 8677/03), 8 January 2008 ECHR Sahin v. Germany, [2003] ECHR 2003-VIII 63, no. 30943/96 ECHR 13 July 2000, Scozari and Giunta v. Italy, Series A, no. 221 ECHR Sommerfeld v. Germany, [2003] ECHR 2003-VIII 137, no. 31871/96 ECHR Sylvester v Austria (Application nos. 36812/97 and 40104/98) (2003) 37 EHRR 417 ECHR Zawadka v. Poland (Application no. 48542/99) [2005] ECHR 421

530

Brussels IIbis Regulation 47/5 23/34 2/27 23/34 47/1; 47/5–7; 47/10 47/1; 47/5–6

November 2016

Index The first number indicates the relevant article, the second number relates to the respective note within the commentary on this article.

abduction of the child 10/6 automatic enforceability of return orders 11/76 cooperation of the central authorities 55/8 jurisdiction of the courts of the new habitual residence 10/13; 10/19 primacy of the courts at the former habitual residence 10/6; 10/9; 11/6; 11/54 relocation disputes 9/1 access rights 2/25; 8/2; 23/4; 40/4 exercise arrangements 48/8 legal aid 50/9–50/10 recognition and enforcement of judgments, direct 40/5; 41/1; 41/8–41/12 internal cases 41/15 no declaration of enforceability necessary 41/3 no public policy caveat 41/7 opposing lex fori 41/13 standard form certificate see standard form certificate acquiescence to the removal of the child 10/14–10/18 administrative proceedings 1/7 agreements, enforceable see authentic instruments alternative dispute resolution 55/8–55/10 Annex III-certificate 45/18 see standard form certificate Annex IV-certificate 45/19 see standard form certificate Annexes amendments to 69/3 standard form certificate see standard form certificate anti-suit injunctions 19/85–19/86 appeal against appellate decision 34/1 decision on jurisdiction 19/58 declaration of enforceability 33/1 enforcement measures, against 33/12 refusal of a declaration of enforceability 33/41 aggrievement requirement 33/3

Peter Mankowski

cassazione, in 34/1 exceptional character 34/4 lack of suspensory effect 34/5 list of notified proceedings 34/6–34/7 effect of 33/4 genuine third party, by 33/5–33/10; 33/42– 33/43 procedure 33/13–33/17 contradictory nature 33/18; 33/21 summons to appear 33/28 object of 33/11 time limit 33/33–33/40 appearance, lack of respondent 18/21–18/24 Austria agreements concerning parental responsibility 1/5 application for declaration of enforceability 29/4 Luxembourg Convention of 8 September 1967 22/7 authentic instruments agreements 46/10 court settlements 46/13 decisions on enforcement 46/15 definition of 46/9 documents covered 46/4; 46/7–46/8 parental responsibility, in the field of 46/5; 55/8–55/10 recognition and enforcement 46/1 burden to produce documents 46/17 effects 46/24–46/25 enforceable contents 46/11 formal requirements 46/18–46/21 translation of 46/22 automatic recognition, principle of Intr/8; 11/76; 21/7; 23/4; 42/1 autonomous interpretation Intr/79–Intr/80 Belgium application for declaration of enforceability 29/4 Borrás Report 1/7; 1/30; 1/55; 1/64; 2/7; 6/12; 19/32; 19/79; 20/9; 26/1

531

Brexit Brexit Intro/68a; Intr to Arts. 16-19/26; 59/1; 61/1 Brussels I/Ibis Regulation 12/52; 14/2; 17/12; 35/19; 39/2 Brussels II Convention Intr/10; Intr/23; 1/3; 4/2; 5/2; 6/1–6/2; 7/1–7/2; 9/2; 17/1; 20/3; 20/9; 28/2; 31/2; 37/2; 38/4; 39/2 Brussels II Regulation Intr/3; Intr/9–Intr/10; Intr/23–Intr/25; 1/3; 4/2; 5/2; 6/1–6/2; 7/1– 7/2; 10/1; 11/7; 12/16; 16/1; 16/3; 16/8; 17/1; 20/3; 20/9; 36/3; 37/2; 38/4; 39/2; Intr to Arts. 40–45/4; 46/2; 65/4 repeal by the Brussels IIbis Regulation 71/1 Brussels IIbis Regulation alteration of references to the Brussels II Regulation 71/5–71/6 competence of the EU Intr/21 external Intr/29–Intr/30 direct applicability Intr/27 entry into force 72/1–72/4 interlocal conflicts 66/5–66/9 interpretation comparism to Brussels I Regulation Intr/82 competence of the ECJ Intr/87 independence from national concepts Intr/79 Practice Guide Intr/85–Intr/86 systematic Intr/81; Intr/83 jurisdictional rules element of internationality required Intr/113 general concepts Intr/117–Intr/123 legislative history Intr/22–26; 1/3; Intr to Arts. 40-45/4 travaux préparatoires Intr/84; 19/40 precedence over all non-conforming national law Intr/28 principles automatic recognition Intr/8 legal certainty Intr/5 mutual trust Intr/3 purpose Intr/2 avoidance of concurrent proceedings Intr/7; 19/2 consistency with the Brussels II Regulation Intr/9 expeditious proceedings 11/30–11/31 jurisdictional unification Intr/4 procedural unification 11/3 protection of the best interests of the child Intr/6 relation to other bi- or multilateral instruments 22/7–22/8; Intr/59–63/1; Intr/ 59–63/3

532

Index conclusion of new international treaties Intr/30 Nordic option 59/3 precedence of multilateral conventions 60/1 European Convention of 20 May 1980 on recognition of custody decisions 60/5 Hague Convention of 1 June 1970 on the recognition of divorces 60/4 Hague Convention of 5 October 1961 on the protection of minors 60/2 Hague Convention of 19 October 1996 on the Protection of Children 61/1 Hague Convention of 25 October 1980 on child abduction 60/6 Luxembourg Convention of 8 September 1967 on recognition of decisions concerning the validity of marriages 60/3 principle of supersession 59/1 repeal of the Brussels II Regulation 71/1 review 65/1 scope of application see scope of the Brussels IIbis Regulation state liability for incorrect application Intr/ 140–Intr/142 terminology Intr/25 Brussels IIter Intr/12 Brussels III see Rome III Regulation central authorities collection of data by the Commission 67/6 changes as to the material data 67/9– 67/11 means of communication 67/8; 67/12 cooperation in parental responsibility matters 55/2–55/7 costs of activities 57/7 designation of 53/5–53/6 functions 54/1–54/3 information about 67/1; 67/3 meetings 58/1 request for assistance 57/1–57/4 Charter of Fundamental Rights of the European Union Intr to Arts. 40–45/1 child abduction 10/6 definition 1/65 fundamental rights 11/23; 11/55 hearing of the child 11/16–11/17; 11/22 of the family 1/62 placement in another member state 56/1– 56/3 unborn 1/65 child abduction 10/6

November 2016

Index automatic enforceability of return orders 11/76 cooperation of the central authorities 55/8 jurisdiction of the courts of the new habitual residence 10/13; 10/19 primacy of the courts at the former habitual residence 10/6; 10/9; 11/6; 11/54 relocation disputes 9/1 civil matters definition 1/11; 1/15 matrimonial matters 1/12 matters of parental responsibility 1/14 civil-status records 21/6 Commission Practice Guide see Practice Guide committee assisting the Commission 70/1– 70/3 competence ad intra 7/8 ad extra 7/8 of the EU for the Brussels IIbis Regulation Intr/21 Concordats see Holy See, treaties with the consent divorce 1/5; 22/15 consequences of judgments 1/38 personal 1/39 property consequences 1/40 constitutive judgments 1/34; 2/13 costs 49/1–49/3 exemption from costs 50/5 legal aid see legal aid security for 51/1 counterclaim 4/3 amendment of 16/31 relation to lis pendens 4/4 court settlements 46/13 see authentic instruments cross-actions 8/12 Czech Republic application for declaration of enforceability 29/4 declaration of enforceability 28/1 absence of required documents 38/2 appealability of see appeal, against, declaration of enforceability application by an interested party 28/8 based on formal requirements 37/28 court of origin, by the 41/2 default judgments, of 37/18

Peter Mankowski

documents documents required 37/1 exception to the exequatur procedure 40/3 jurisdiction of local courts 29/1 partial enforcement 36/4 application for 36/7 separation of several „matters“ 36/5 prerequisites 28/5–28/8 procedure 30/1; 30/4–30/6 ex parte nature 31/4 notice of decision 32/1–32/4 time-limit for court decision 31/3 standard form certificate, replacement by 41/3; 41/22; 42/3 default judgment 37/18 acknowledgment by the defaulting party 37/25–37/26 fast track enforcement procedure 41/29– 41/30 hearing of the child 37/24 proper service of the defaulting party 37/24 Denmark administrative divorce proceedings 1/4; 22/14 dismissal, mandatory 19/53–19/55 divorce consent divorce 1/5; 22/15 exclusion of fault 1/44 on exceptional grounds 22/18 unilateral 22/16 waiting period 22/17 documents absence of 38/2; 38/5–38/7 possible reactions of the court 38/11– 38/13 acceptance of equivalent documents 38/16–38/18 dismissal of application 38/22 dispense with the production of documents 38/19–38/21 setting of a time limit 38/14 reason for the non-production 38/8 amendments of applications and counterclaims 16/31 authentic instruments see authentic instruments effects of 45/14–45/15 instituting the proceedings see seisin of court, document instituting the proceedings legalisation of 52/1, 52/3–52/4 required for attack, recognition or enforcement of judgments 37/1; 45/1 authenticated copy of the judgment 37/12–37/13; 45/5–45/8 burden of production 37/11; 45/13

533

dual nationality time limit 37/27 judgments covered 37/6; 37/26 access judgments 45/3 default judgments 37/18 return judgments 45/3 proceedings covered 37/9 default proceedings 37/19 standard form certificate 37/16–37/17; 39/1; 45/5; 45/9–45/12 service of 28/7 translation of see translation of documents dual nationality 3/13–16 enforceability, declaration of see declaration of enforceability enforcement access orders, of 47/10 declaration of enforceability see declaration of enforceability distinction between enforceability and enforcement 47/4 fast track see fast track enforcement procedure governed by the laws of the enforcement state 47/1 return orders, of 47/11 standard track 47/8 still appealable judgments, of 35/1 appeal in the enforcement state 35/5– 35/6 appeal in the judgment state 35/7–35/10 application for a stay of proceedings 35/11; 35/14 burden of proof 35/21 consequences 35/22 judgments rendered in the UK or Ireland 35/20 subsequent judgments, priority of 47/3; 47/17 England uncontested divorces 1/7 Estonia administrative divorce proceedings 1/5 application for declaration of enforceability 29/4 European Convention on Human Rights Intr/ 20; 11/38; 11/49; 11/57; 33/1; 47/15 execution of return orders, case law of the ECHR 47/5–47/7; 47/16 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 48/5; 50/2

534

Index European international family and succession law Intr/15; Intr/17 European private international law Intr/11 execution of judgments see enforcement of judgments expenses see costs family law Europeanisation Intr/16 fast track enforcement procedure Intr to Arts. 40–45/5; 47/9 access judgments 40/5–40/8; 41/1 criticism of the direct enforcement procedure Intr to Arts. 40–45/6 default judgments 41/29–41/30; 42/21 no exclusion of the general enforcement procedure 40/15; 42/4 return judgments 40/10–40/12; 42/1 Finland agreements regarding custody, residence and visitation rights 1/6 application for declaration of enforceability 29/4 Nordic Convention of 6 February 1931 22/7; 59/3 Nordic exception 59/3 residual jurisdiction rules 7/6 former habitual residence of the child 8/14; 9/4 maintenance of jurisdiction 10/6; 10/9; 11/6 primacy of court decisions 11/6; 11/54 relocation disputes 9/1 specific procedure 11/63 forum conveniens 7/6 forum non conveniens connecting factors 15/25 former habitual residence 15/28 location of the child’s property 15/34 present habitual residence 15/29 residency of a holder of parental responsibility 15/33 state of nationality 15/30 designation of a competent court 15/16 general idea 15/3; 17/15 opportunities for the court 15/15; 15/18 prerequisites 15/11–15/14; 15/22 reaction of the designated court 15/52 transfer procedure 15/38; 15/40–15/42; 15/46–15/49 forum shopping 16/2; 17/4–17/5; 19/4 foster family 56/4

November 2016

Index France application for declaration of enforceability 29/4 national grounds of jurisdiction 12/21 Germany application for declaration of enforceability 29/4 custody 1/6 residual jurisdiction rules 7/6 Greece application for declaration of enforceability 29/4 judgments by muftis 1/12 Groupe Européen de Droit International Privé Intr/150; 3/17 habitual residence 2/8–2/10; 7/10; 18/3; 18/13 definition 8/6; 8/8 of the child 8/5; 8/7; 61/2 Hague Convention of 1980 on the civil aspects of international child abduction 10/2; 10/5; 10/7; 10/15; 10/20–10/22; 11/71 relation to the Brussels IIbis Regulations 11/1; 11/3–11/6; 11/55; 23/7; 40/10; 40/13; 42/22; 47/7; 50/2; 53/5; 60/6 Hague Convention of 1996 on the Protection of Children Intr/30; 8/5; 9/3; 10/6; 10/12; 10/16; 10/20–10/22; 12/6; 12/13; 13/1; 13/7; 14/8; 15/26; 20/4; 20/19; 23/8; 50/2; 59/6; 61/1; 66/2 Hague Service Convention 16/25; 18/6–18/8; 18/15; 18/25; 18/29–18/31; 18/36 harmonisation of substantive family law see unification of substantive family law hearing of the child 11/16–11/17; 11/22; 23/22; 37/24; Intr to Arts. 40–45/6; 41/3; 41/23; 41/27; 42/19 holder of custody rights acquiescence to the removal of the child 10/15–10/18 Holy See, treaties with the 1/13; 22/8; 63/1 Human Rights Convention see European Convention on Human Rights Hungary disputes concerning parental responsibility 1/6 information about central authorities 67/1; 67/3 relating to courts 68/1–68/6 injunctive relief 16/20; 19/88 interim relief see provisional measures

Peter Mankowski

jurisdiction Ireland application for declaration of enforceability 29/4 enforcement of foreign judgments 28/10 enforcement of still appealable judgments 35/20 residual jurisdiction rules 7/6 irreconcilable judgments 47/17–47/19 Italy application for declaration of enforceability 29/4 residual jurisdiction rules 7/6 treaties with the Holy See 22/8; 63/1 Jenard Report 31/5 joint application 2/9 judgment definition 2/9; 28/3 legalisation of 52/3–52/4 relating to parental responsibility 28/4 access order see access rights placement order 56/1–56/3 return order see return order jurisdiction abduction see abduction of the child burden of proof Intr/127 see child abduction conflicts of 17/7;17/32; 19/18; 19/82 conversion of legal separation into divorce 5/5 counterclaim, over 4/3 relation to lis pendens provision 4/4 court of origin, of 22/25; 23/18 no review of jurisdiction 24/1 criteria Intr/127; 2/7 discontinuatio fori Intr/126 dual nationality of the spouses 3/13–3/16 element of internationality Intr/113-Intr/ 115 examination by a court seised 17/1; 17/21– 17/23 exclusive nature of Arts. 3 to 5 6/4 forum non conveniens see forum non conveniens general rule Intr/117; 2/6; 14/3 habitual residence, based on Intr/118; 2/8– 2/9 of the applicant 2/10 of the child 8/5; 29/6 after an abduction 10/8–10/10; 10/25– 10/32

535

Latvia general rule 8/5–8/12 exception 8/14–8/15; 9/5 of the respondent 2/9; 29/7 of the spouses 7/10 lis pendens see lis pendens local courts, of the 29/9 nationality, based on the Intr/121; 2/12 parental matters, in Intr/4 alternative forum 12/1 at the habitual residence of the child 8/5; 12/7 maintenance obligations 12/23; 12/27 of the divorce court 12/3; 12/10; 12/32; 12/38 general exception to the normal jurisdiction rules 12/45; 12/48 party autonomy Intr/128-Intr/130 perpetuatio jurisdictionis see perpetuatio fori presence of the child, based on 8/15; 13/3; 29/9 relevant point of time Intr/125–Intr/126 residual jurisdiction 7/3; 14/3 Finland 7/6 Germany 7/6 Ireland 7/6 Italy 7/6 Spain 7/6 Sweden 7/6 United Kingdom 7/6 visiting rights 9/3 Latvia application for declaration of enforceability 29/4 legal aid 50/2; 50/5 access orders 50/9–50/10 enforceability, declaration of 50/8 non-recognition of a judgment, declaration of 50/7 return orders 50/9 legal certainty, principle of Intr/5 legal separation conversion into divorce 5/3 recognition of decisions 22/20 legalisation documents, of 52/1; 52/3–52/4 judgments, of 52/3–52/4 return orders 52/6 limping marriages Intr/18 lis pendens Intr/131-Intr/132; 12/9; Intr to Arts. 16–19/6; 19/1; 19/7–19/9 autonomous notion of 16/32

536

Index counterclaim, relation to 4/4 failure of service 16/29 „false“ 19/28; 19/38; 19/95 forum non conveniens, relation to 15/23 mandatory attempts for reconciliation 16/58; 16/62 proceedings pending 19/11 identical matter of parental responsibility 19/44–19/46 identity of cause of action 19/23–19/27; 19/47–19/49 identity of parties 19/19–19/22 in a third state 19/13 relating to divorce, legal separation or marriage annulment 19/16 stay of proceedings see stay of proceedings Lithuania application for declaration of enforceability 29/4 Luxemburg application for declaration of enforceability 29/4 Maintenance Regulation Intr/11; Intr/13 Malta application for declaration of enforceability 29/4 opposition to Rome III Intr/12 recognition of divorces 22/13 treatise with the Holy See 22/8; 63/1 marriage annulment 1/50 prerequisites 22/21 recognition of foreign annulment decrees 22/23 matrimonia claudicantia see limping marriages matrimonial proceedings definition 1/16; 1/30 dissolution through declaration of death or absence 1/17 divorce 1/41–1/43 factual relationship 1/24 formless marriage 1/19 legal separation 1/47-49 marriage annulment 1/50 registered partnership 1/26; 1/30–1/33 same-sex marriages 1/20–1/23 matrimonial property regimes, Regulation on Intr/14 maximum delay 11/34 mediation 55/8–55/10 mutual trust, principle of Intr/3; 17/2

November 2016

Index The Netherlands application for declaration of enforceability 29/4 divorce judgments 2/11 „lightning“ divorce 1/9 Luxembourg Convention of 8 September 1967 22/7 same-sex marriage 1/20 non-review as to substance 22/11; 22/27; 23/12; 23/20; 26/3; 31/7; 48/7 Nordic exception 59/3 parental responsibility issues Intr/6; 18/11 best interest of the child 23/14 concept 1/56–1/58 content 1/70 cooperation between central authorities 55/2–55/7 definition 1/2; 2/18; 8/1 excluded matters 1/72 holder of parental responsibility 2/21 jurisdiction 8/4 independence of matrimonial proceedings 1/60–1/61 scope 8/2 youth protection measures 1/14 permanent residence see habitual residence perpetuatio fori Intr/125; 9/3; 64/4 personal scope of the Brussels IIbis Regulation Intr/78; 3/4 children habitually resident in a member state 61/2 children of the spouses 12/19 Poland application for declaration of enforceability 29/4 Portugal administrative divorce proceedings 1/5 application for declaration of enforceability 29/4 Treaties with the Holy See 22/8; 63/1 Practice Guide Intr/85–Intr/86; 11/61; 12/55– 12/56; 12/60; 15/55; 19/90; 48/9; 53/6–53/7; 55/8 previous habitual residence see former habitual residence Proposal for a Recast see Recast Proposal prorogation agreement for parental responsibility matters 12/32– 12/36; 12/50–50ter protective measures see provisional measures

Peter Mankowski

recognition of judgments provisional measures 20/1 application for 20/2; 20/5; 20/7 availability of 20/6; 20/8; 20/24 creation of jurisdiction 20/11–20/13 duty of information 20/15 matters beyond the material scope of the Regulation 20/9 object of protection 20/21 potential measures 20/17–20/18; 20/23 temporal limitations 20/27–20/28 territoriality, condition of 20/24–20/26 urgency requirement 20/19–20/20 race to the courthouse 16/3 Recast Proposal Intr/143–150; 7/12; 8/16; 11/9; 12/34; 12/50; Intr to Arts. 16–19/20–25; 53/1–2; 55/12; 56/10; Intr to Arts. 59–63/1 recognition of judgments access judgments see access rights, recognition and enforcement of judgments automatic 11/76; 21/7; 23/4; 42/1 basic policy Intr/134–Intr/135; 21/5; 23/1 decision based on formal requirements 37/28 declaration of 21/8 application for 21/9 procedure 21/10–21/14 effect 22/45; 23/40 excluded judgments Intr/136; 22/2–22/6 Finnish judgments, special need for examination 59/3 grounds of non-recognition 22/10 difference in applicable law 22/26; 23/19; 25/1 divorce by administrative agencies 22/14 divorce by consent 22/15 divorce on exceptional grounds 22/18 fraudulent creation of a forum 22/24 irreconcilability with local judgment 22/40; 23/35–23/36 irreconcilability with earlier foreign judgment 22/42; 23/37–23/38 lack of hearing of the child 23/22 of the interested person 23/34 legal separation 22/20 public policy, violation of 22/10; 23/11 service, incorrect or missing 22/29– 22/31; 23/23–23/25 unilateral divorce 22/16 incidental 21/15 legal aid see legal aid

537

reference procedure non-review as to substance 22/11; 22/27; 23/12; 23/20; 26/3 scope 26/6 ordre public Européen 22/12, 23/13 parental responsibility judgments scope of application 23/3 placement decisions 23/39 prerequisites 21/2–21/3 return judgments see return order, recognition and enforcement stay of proceedings 27/3–27/8 Swedish judgments, special need for examination 59/3 reference procedure Intr/87–Intr/88; Intr/ 104–Intr/106 court of last instance Intr/93–Intr/96 fast track reference Intr/107 formal requirements Intr/102 history Intr/108–Intr/112 no interpretation of national law Intr/89 obligation to refer Intr/99–Intr/101 pending procedure Intr/90 relevance of the question Intr/97 refugee children 13/7 registered partnership 1/28–1/30 Proposal for a Regulation on matrimonial property regimes Intr/14 relocation disputes 9/1 determination of parties 11/64 primacy of the courts at the state of the former habitual residence 11/6; 11/54 reaction of the left-behind parent 11/66 specific procedure 11/62–11/69 transmission of documents 11/55 res iudicata effect 17/27; 19/7; 19/11; 19/35; 19/37; 19/56; 19/70; 19/72; residence, habitual see habitual residence residual jurisdiction 7/3 relation to Art. 6 6/5 prerequisites 7/4 Resolution on equal rights for homosexuals and lesbians in the European Community of 8 February 1994 1/27 retention 2/28; 10/4 return order 11/5; 11/54; 40/4 legal aid 50/9 legalisation issues 52/6 recognition and enforcement, direct 11/76; 23/4; 42/1; 42/7–42/11 internal cases no public policy caveat 42/6 opposing lex fori replacement of the declaration of enforceability 42/3

538

Index standard form certificate see standard form certificate refusal of return 11/41–11/42 right to a fair trial 11/49 right to be heard 11/49; 18/1; 41/3; 41/23 rights of custody 2/24 Rome III Regulation Intr/11; Intr/138; 6/11; 6/13; 7/7; 7/10–7/12; 8/2 same-sex marriages Intr/14; 22/2 in the Netherlands 1/20 scope of the Brussels IIbis Regulation, international connection with another Member State Intr/113 decisions and orders rendered by courts in Member States Intr/32 habitual residence of one of the parties within a Member State Intr/31 scope of the Brussels IIbis Regulation, material 1/1 civil matters Intr/70; 1/1; 1/11 excluded matters 1/4 adoption Intr/76 celebration and formation of marriage Intr/73 factual relationships 1/24 factual separation 1/37 filiation, questions of Intr/76 formless marriage 1/19 maintenance issues Intr/71 property consequences of a divorce Intr/ 72 registered partnerships Intr/74; 1/26; 1/30–1/33 religious or private terminations of marriage 22/3 same-sex marriages Intr/74; 1/20–1/23; 22/2 matrimonial questions 1/1; 1/12; 2/5 divorce Intr 69; 1/41–1/43; 2/14 exclusion of fault Intr/69; 1/44 legal separation Intr/69; 1/47–1/49; 2/14 marriage annulment Intr/69; 1/50; 2/14 parental responsibility issues Intr/75; 1/2; 1/14; 2/15 scope of the Brussels IIbis Regulation, personal Intr/78; 3/4 children habitually resident in a member state 61/2 children of the spouses 12/19 scope of the Brussels IIbis Regulation, procedural administrative divorce proceedings 1/4; 1/7

November 2016

Index exclusion of private and religious proceedings 1/12–1/13 nature of the court 1/4 non-judicial proceedings 1/4 scope of the Brussels IIbis Regulation, temporal Intr/77 gaps in the overall system 64/26–64/28 rules regarding authentic instruments 64/7–64/8 documents 64/7–64/8 future accessions to the EU 64/35 jurisdiction 64/2–64/3 lis pendens 64/29–64/32 party agreements 64/9 principle of non-retroactivity 64/1, 64/4 recognition and enforcements extensions 64/12–64/21 general rule 64/10–64/11 judgments by courts of an Accession State 64/24 transitional provisions 22/9; 23/10; 64/1 scope of the Brussels IIbis Regulation, territorial Intr/33–Intr/34; 2/6 Austria Intr/39 Belgium Intr/40 Bulgaria Intr/41 Cyprus Intr/42 Czech Republic Intr/43 Denmark Intr/44; 2/6 Protocol on the Position of Denmark to the Treaty of Amsterdam Intr/45 Estonia Intr/46 Finland Intr/47; 2/7 France Intr/48 overseas departments Intr/49 general rule Intr/37 Germany Intr/50 Greece Intr/51 habitual residence of the child in a member state Intr/35; 61/2 Hungary Intr/52 Ireland Intr/53; 2/6 Italy Intr/54 judgments rendered by a court located in a Member State Intr/36 Latvia Intr/55 Lithuania Intr/56 Luxemburg Intr/57 Malta Intr/58 The Netherlands Intr/59 Poland Intr/60 Portugal Intr/61 relation to the Hague Convention of 1996 12/18; 61/1 Romania Intr/62

Peter Mankowski

standard form certificate Slovakia Intr/63 Slovenia Intr/64 Spain Intr/65 Sweden Intr/66; 2/7 United Kingdom Intr/67–Intr/68; 2/6 seisin of court Community notion of 16/3; 16/5; 16/11; 16/33–16/35; 16/39 limited scope of application 16/7–16/9 concept of retroactivity 16/36 court first seised 19/42–19/43; 19/69–19/73 document instituting the proceedings 16/12–16/14; 18/18–18/20 applications for injunctive relief 16/20 basic degree of comprehensibility 16/17 information about the subject matter 16/15 lodging 16/21–16/22 service of 16/15; 16/24–16/30; 18/25– 18/27 service address of the applicant 30/5 definition of 16/24–16/25 documents, of 28/7 procedure Intr to Arts. 37–39/5 factual difficulties 16/26 measures necessary 16/40–16/42 premature 16/30 process, of 22/32–22/35; 23/26–23/29; 37/20–37/21 proof of 37/20 time limits 16/45–16/49 Service Regulation 16/27–16/28; 18/7; 18/26–18/28; 18/36–18/38 Slovakia application for declaration of enforceability 29/4 Spain application for declaration of enforceability 29/4 residual jurisdiction rules 7/6 treaties with the Holy See 22/8; 63/1 standard form certificate 37/16–37/17; 39/1; 41/16–41/17 appeal 43/10–43/11 competent authority 39/3; 41/18–41/20; 42/15–42/16 contents 39/7–39/9; 41/22; 42/18 entitlement of request 39/4–39/5; 41/21; 42/17 effect 41/32–41/33; 42/26–42/27; 44/3 fast track enforcement see fast track enforcement procedure hearing of all persons concerned 41/23– 41/27; 42/19–42/20

539

stay of proceedings issuance of the certificate ex officio 41/36; 42/25 language 41/31; 42/24 translation 45/16–45/17; 45/20–45/21 no declaration of enforceability necessary 41/3; 41/22; 42/3 procedural questions 39/12–39/14 rectification of 43/1 effect 43/9 incorrect contents 43/3–43/4 procedure 43/5–43/8 time limit for application 39/6 stay of proceedings 18/1 mandatory 18/34; 19/50 substantive scope of the Brussels IIbis Regulation administrative divorce proceedings 1/4; 1/7 exclusion of private and religious proceedings 1/12–1/13 nature of the court 1/4 non-judicial proceedings 1/4 Sweden application for declaration of enforceability 29/4 Nordic Convention of 6 February 1931 22/7; 59/3 opposition to Rome III Intr/12 Nordic exception 59/3 parental agreements on custody and access 1/6 residual jurisdiction rules 7/6 territorial scope of the Brussels IIbis Regulation Intr/33–Intr/34; 2/6 Austria Intr/39 Belgium Intr/40 Bulgaria Intr/41 Cyprus Intr/42 Czech Republic Intr/43 Denmark Intr/44; 2/6 Protocol on the Position of Denmark to the Treaty of Amsterdam Intr/45 Estonia Intr/46 Finland Intr/47; 2/7 France Intr/48 overseas departments Intr/49

540

Index general rule Intr/37 Germany Intr/50 Greece Intr/51 habitual residence of the child in a member state Intr/35; 61/2 Hungary Intr/52 Ireland Intr/53; 2/6 Italy Intr/54 judgments rendered by a court located in a Member State Intr/36 Latvia Intr/55 Lithuania Intr/56 Luxemburg Intr/57 Malta Intr/58 The Netherlands Intr/59 Poland Intr/60 Portugal Intr/61 relation to the Hague Convention of 1996 12/18; 61/1 Romania Intr/62 Slovakia Intr/63 Slovenia Intr/64 Spain Intr/65 Sweden Intr/66; 2/7 United Kingdom Intr/67- Intr/68; 2/6 translation of documents 37/23; 38/1; 38/3; 38/23–38/24; 39/11; 45/16–45/17; 45/20–45/21; 47/9 transmission of documents 11/55 unification of substantive family law Intr/16 competence of the EU Intr/17 United Kingdom application for declaration of enforceability 29/4 enforcement of foreign judgments 28/10 enforcement of still appealable judgments 35/20 residual jurisdiction rules 7/6 territorial subdivision 66/3 visiting rights 9/2 jurisdiction, prerequisites of wrongful removal 2/28; 10/4

9/5

November 2016